Justices signal possible trouble ahead for health insurance mandate

Posted by Kendall Harmon

Even before the Obama administration’s top lawyer could get three minutes into his defense of the mandate, the justices accused the government of pushing for excessive authority to require Americans to buy anything.

“Are there any limits,” asked Justice Anthony Kennedy, one of three conservative justices who are seen as critical to the fate of the unprecedented insurance mandate.

Chief Justice John G. Roberts, Jr.suggested the government might require Americans to buy cell phones to be ready for emergencies. And Justice Antonin Scalia asked if the government might require Americans to buy broccoli or automobiles.

Read it all.

Filed under: * Culture-WatchHealth & Medicine--The 2009 American Health Care Reform DebateLaw & Legal Issues

13 Comments
Posted March 27, 2012 at 10:55 am

To comment on this article: Go to Article View

The URL for this article is http://www.kendallharmon.net/t19/index.php/t19/article/41954/



1. Dan Crawford wrote:

The justices apparently don’t know that governments already require us to purchase auto insurance.

March 27, 3:13 pm | [comment link]
2. Cennydd13 wrote:

I have no problem with buying automobile insurance, but government-mandated purchase of health insurance is an entirely different matter, since it’s the federal government which is doing the mandating…...something which it has no constitutional power to do.

March 27, 3:29 pm | [comment link]
3. Rick H. wrote:

#1,  The members of the Court certainly know that in most states, auto insurance is legally mandatory for anyone who drives an auto.  But it is state governments and not the federal government that require individuals to buy auto insurance, and this case is about the limitation of federal powers, not the limitation of state powers. 

This case is about the meaning of the Tenth Amendment, which states:  “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  In other words, the federal government has only such powers as are expressly given to it by the Constitution.  It does not have the power to enact a law simply because the law may seem to be a good idea to Congress.  For example, the federal government is powerless to enact laws criminalizing domestic violence, except in certain rare cases, such as acts committed on federal property. 

The powers given to the Congress to enact laws are specified in Article I, Section 8 of the Constitution.  They are there for anyone to read, and they are for the most part quite straightforward.  The administration is asserting in this case that it is the commerce clause, the third enumerated power in section 8, that provides authority to legally require anyone residing in America to buy health insurance.  (“The Congress shall have Power To . . . regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”.)  Whether an individual state can use its state power to compel its citizens to buy health insurance is entirely different than the question of whether the commerce clause provides authority for Congress to enact an individual health insurance mandate.

Beyond that, an auto insurance mandate places a burden on individuals because they choose to drive a car.  The Affordable Care Act’s health insurance mandate places a burden on individuals because they are people. 

I don’t know (and neither does anyone else know) how the U.S. Supreme Court will decide this case.  But none among the nine justices is stupid, ill-educated, or unfamiliar with the arguments from both sides.  This case has been well-briefed by very bright legal minds on both sides and it is being argued by very bright legal minds on both sides.  You may be sure that any legitimate arguments that you or I could craft have already been raised, and articulated quite well.

March 27, 3:55 pm | [comment link]
4. David Keller wrote:

#1—You have to have it to drive, as a condition of using the roads. Its purpose is to protect others, not yourself.  Governments can’t require those who do not drive to buy car insurance. Even if you do drive you are not required to insure your car or your person, only someone or something your may harm or injure. By contract, a lien hoilder mnay require you to cover the car, but the government does not. On another note, those question asked by the Justices really don’t mean much.  I can’t tell you how many times I was certain I had won a case on appeal because of the questions, but lost; and vice versa.

March 27, 4:21 pm | [comment link]
5. Teatime2 wrote:

#4—Here in my city, it is illegal to have an unregistered, uninsured car on your property. You don’t have to drive it to be breaking the law. I found that out when I was freaking unable to drive because I had shoulder surgery and my arm immobilized for months. I was warned that I’d better keep the tags current because it’s illegal for a car to even sit in your driveway unregistered and uninsured..

But this is all a bunch of hair-splitting, anyway. The government doesn’t care about fairness or personal liberty—they are lobbied and paid off to legislate according to the wishes of the highest bidder. And the Supreme Court is not immune. Remember corporate personhood? The decision they reach will benefit someone or something powerful. It won’t reflect constitutionality or the best interests of the people.

March 27, 5:21 pm | [comment link]
6. drummie wrote:

#1, The various states require LIABILITY insurance which is to protect persons other than the owner of the policy.  Collision insurance that protects the insured is not a requirement unless a financial institution requires it.  Health insurance that I buy isn’t to cover someone unknown to me for damage I might cause.  The government is mandating protection from us, not protection for us with auto liability insurance.  Big difference.  The main issue to me is not the health insurance as such but on the encroachment of the federal government into peoples lives.  What constitutional authority is there for the government to tell me to buy something for myself?  What are they protecting? Me from myself? I don’t think so.  It has nothing to do with insurance, but with the leftist idea that the government knows better what I want than I do. I realize we have a Hugo Chavez wannabe in the White House, but hopefully the Supreme Court will nip him in the bud before he does assume dictatorial powers beyond what he already has. If they don’t, we will probably all be required to buy Chevy Volts and then get solar panels for the house from Solyndra.

March 27, 5:27 pm | [comment link]
7. Br. Michael wrote:

We have duel sovereignty in this country.  The States, as successors to the colonies have what is called, the police power.  This is the power inherent in an absolute sovereign.  Under the police power the states can directly compel people to do and not do things.  This power is limited by the state and federal constitutions

The federal government is a creation of the States.  It has only that power given to it in the Constitution, it does not have the police power.  It has no inherent power to directly compel people to do and not do things, such as buy auto insurance.

And that’s what this is all about.  Does the power granted Congress to regulate commerce transform the federal government into a government with police powers and, in effect, abrogate the Constitution.

March 27, 7:25 pm | [comment link]
8. NoVA Scout wrote:

Well, at least we know that: 1) the states could (as Massachusetts did) require participation in health care insurance on the state level; and 2) the federal government could have lawfully legislated a single payor system had they not followed the Republican/conservative compromise of rigging this up through private insurance with universal participation.

March 27, 11:03 pm | [comment link]
9. Br. Michael wrote:

8, It’[s the difference between doing it right and doing it wrong.  And they didn’t have the votes to do it the right way.

And the allocation of power is critical.  It is the difference between liberty and tyranny.  Do you really want to give the federal government the police power and then turn it over to a Republican administration?  Remember your party may not always be the one in power.  Pitting power against power may not be pretty and it may previent us from passing our agenda and getting what we want, but it protects us all and secures the maximum amount of liberty.

March 28, 4:06 am | [comment link]
10. David Keller wrote:

#8—Where were you two years ago? There was NO compromise. NOTHING was given to Republicans. There was NO real debate. The compromise was with moderate Democrats to get their vote. If you will note not one Republican voted for it and the majority of moderate Democrats who voted for it have been canned by their constituients. You blame Republicans,but the NY Times poll shows over 70% of Americans don’t want the Feds running health care. NY Times, not Fox. Thus the election results of 2010.

March 28, 5:07 am | [comment link]
11. NoVA Scout wrote:

I don’t blame the Republicans at all (“blame” is not a useful concept for me in most political or policy contexts).  I was commenting on the court argument yesterday.  The irony is that the opponents concede that a full-blown single payor system would not have the constitutional infirmity that they claim exists for the approach adopted of cramming the universal coverage requirement into a private insurance-based system.

March 28, 6:54 am | [comment link]
12. David Keller wrote:

NoVA—Ok.  But your comment in #8 specifically says we didn’t get a single payor system because of Republican compromise.  I made my comment, above, because the official DNC line has become exactly what you wrote; that the Republicans sabotaged Obamacare—which is revisionist history, at best.

March 28, 8:41 am | [comment link]
13. NoVA Scout wrote:

I don’t think we sabotaged Obamacare.  The individual mandate was our way of sabotaging Hillarycare.

March 28, 11:16 pm | [comment link]


© 2014 Kendall S. Harmon. All rights reserved.

For original material from Titusonenine (such as articles and commentary by Dr. Harmon) permission to copy and distribute free of charge is granted, provided this notice, the logo, and the web site address are visible on all copies. For permission for use in for-profit publications, please email KSHarmon[at]mindspring[dot]com


<< Back to main page

<< Return to Mobile view (headlines)