2010 HEALTH CARE MANDATE AS TAX VS. INTERSTATE COMMERCE

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UtahOwl
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2010 HEALTH CARE MANDATE AS TAX VS. INTERSTATE COMMERCE

Post by UtahOwl »

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---------------------------- Original Message ----------------------------
Subject: Re: Re: [Re: Re: FYI: Founding Fathers supported mandated health insurance]
From: John Karls
Date: Wed, January 26, 2011 9:34 pm
To: June Taylor aka Utah Owl
Cc: Tom Chancellor, Ted Gurney, Annahir Cariello, Nikki Norton

Attachment = PDF—RL-w209-VirginiaCtOpinionText
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Dear June,

Thank you for your most-recent e-mail. And please accept my apology for taking so long to respond – I was busy filing an appeal to the California Supreme Court vis-à-vis the 15-bank litigation.


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YOUR QUERY ABOUT WHETHER THERE IS ANY CONSTITUTIONAL JUSTIFICATION FOR THE 2010 HEALTH-CARE LEGISLATION BESIDES THE COMMERCE CLAUSE

I disagree with the “since” premise in your second paragraph, but will comment on your question provisionally.

There has been some discussion in the national media (and there were some brief comments from Tom Chancellor at our January meeting as well) that it might be possible to justify the insurance-mandate feature of the 2010 health care legislation as a “tax” that is imposed under certain conditions, viz. the failure to purchase the required health insurance.

Indeed, the taxing power has also been featured, in addition to the power to regulate interstate commerce, in both the Virginia and Florida cases.

Rather than try to summarize for you what is involved with the taxing-power issue, I am attaching the text of the decision of U.S. District Court Judge Henry Hudson (his mother must have had a sense of humor in naming him) in the litigation between the Commonwealth of Virginia and the Federal Government over the 2010 legislation.

RL-w209-VirginaCtOpinionText.pdf
(1.65 MiB) Downloaded 154 times
The commerce-clause issue is addressed first. The taxing-power issue is addressed on pp. 25-38.

This is a final decision of the U.S. District Court even though it was decided on the basis of opposing pre-trial motions. It will now be appealed to the U.S. Fourth Circuit in Richmond. And probably to the U.S. Supreme Court.

It should be noted that there are more than a dozen other lawsuits challenging the constitutionality of the 2010 Health Care legislation.

However, the other lawsuit to attract wide attention has done so because it also involves a challenge by a state government.

In fact, the Florida lawsuit involves 26 states as plaintiffs = Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, North Dakota, Ohio, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Washington, Wisconsin and Wyoming.

This lawsuit not only challenges the insurance mandate, but also challenges the Medicaid mandate which dumps on the states the cost of insuring an additional 16 million low-income individuals.

On October 14, 2010, U.S. District Court Judge Roger Vinson issued a 62-page opinion denying the U.S. Government’s pre-trial Motion to Dismiss (apparently the plaintiffs had not simultaneously filed a Motion for Summary Judgment, as had the Commonwealth of Virginia in the other lawsuit).

In denying the Motion to Dismiss, Judge Vinson did dismiss 3 of 6 counts, found one to be moot, and ruled that two counts (the insurance mandate and the Medicaid mandate) could proceed to trial.

Part of the reason for the delay in responding to your e-mail has been an unsuccessful attempt to obtain a copy of Judge Vinson’s 62-page opinion. [If you or one of the “cc addressees” is able to obtain a copy of the text, I would appreciate receiving it.]

However, news reports indicate that his opinion took an extremely dim view of the U.S. Government’s arguments vis-à-vis the insurance mandate.

But that he also took a dim view of the State Governments’ arguments vis-à-vis the Medicaid mandate ON THE GROUNDS THAT THE STATES COULD SIMPLY WITHDRAW FROM THE MEDICAID PROGRAM!!! [Omigod!!! Where would that leave the 2010 legislation!!!]

Judge Vinson’s final decision is expected any day. It will be appealed to the U.S. Eleventh Circuit. And probably the U.S. Supreme Court.


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YOUR ERRONEOUS SECOND-PARAGRAPH PREMISE

I promised to address your query without quarreling initially with your erroneous second-paragraph premise.

Your erroneous premise is that the only way to fund national healthcare is by forcing everyone to purchase insurance.

Obviously, you haven’t been paying attention to the topic for our next meeting, which is funding universal health care (as well as social security) with a European-style gasoline tax.


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Thank you for your interest and enthusiasm!!!

Your friend,

John K.


---------------------------- Original Message ----------------------------
Subject: Re: [Re: Re: FYI: Founding Fathers supported mandated health insurance]
From: June Taylor aka Utah Owl
Date: Mon, January 24, 2011 8:13 am
To: John Karls
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Dear John,

Back to the Health Care mandate...since it is absolutely clear that the only way to fund rational coverage for all, including those with very high risks for high healthcare costs, is to make the entire population be in the pool of insured, can this mandate be based in something besides the commerce clause? I take your point that there is a decent case not to expand the commerce clause to the point it becomes meaningless.

I plan to read Debtor Nation, but I'm not sure whether I'll recommend it to the group - let me see how readable it is first.

June

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