Thoughts on Today's Political Landscape

[TracyCoxx]

Originally Posted by smc

Yes, back on topic. Go back to what I wrote about the subjectivity of determining the "constitutionality" of something and respond to it.

Ok back on topic...

Originally Posted by smc

Unconstitutional in YOUR opinion, and that of some ideologues on the Supreme Court. Whether they are on the "left" or "right," those who rule on the constitutionality of these sorts of things (unlike, say, the equal protection clause), where the Founders are not around to chime in, are doing so based as much on subjective interpretation as objective fact.

It's not opinion. There simply is no power granted to the government by the constitution to force citizens to purchase or otherwise obtain a good or service. If the Constitution does not restrict the government from doing something, does that mean it's constitutional for them to do it? No. For example, the mandate to pay income tax was found to be unconstitutional in 1895 because that power was not granted to the government. The Constitution had to be amended via the 16th amendment go give the government power to collect income taxes.

The Affordable Care Act would impose a penalty, not a tax, on individuals who do not get health insurance. That power is nowhere in the constitution. If the government really wanted that power they would have to amend the constitution.

[smc]

Originally Posted by TracyCoxx

Ok back on topic...



It's not opinion. There simply is no power granted to the government by the constitution to force citizens to purchase or otherwise obtain a good or service. If the Constitution does not restrict the government from doing something, does that mean it's constitutional for them to do it? No. For example, the mandate to pay income tax was found to be unconstitutional in 1895 because that power was not granted to the government. The Constitution had to be amended via the 16th amendment go give the government power to collect income taxes.

The Affordable Care Act would impose a penalty, not a tax, on individuals who do not get health insurance. That power is nowhere in the constitution. If the government really wanted that power they would have to amend the constitution.

You say it is a penalty, not a tax, and that the government has no power to impose such a penalty. Yet, one issue before the Court is, in fact, whether the penalty is a tax. Some argue that it IS simply because it happens to be collected by the IRS. But that, logically, does not AUTOMATICALLY make it a tax. Hence, my point about subjectivity. The justices must opine as to what it is. As I wrote earlier, the Founding Fathers are not here to weigh in, and who knows ... perhaps they would not have seen it as a tax, according to their understanding of what "tax" means.

Further, the Constitution does allow the government to regulate interstate commerce. Some argue that this penalty falls under that allowance. Again, it is a subjective judgment that must be made.

[GRH]

That's an excellent point smc about the subjectivity of determining the supposed "Constitutionality" of things not explicitly granted or forbidden to the government. Personally, do I think it's wise governance to go mandating the purchase of certain independent, third party products/services? No, not really. However, reading our current Constitution also does not lead me to feel such regulation is outside the realm of what Congress can legally do.

The commerce clause reads pretty broadly to me-- and it has been interpreted in such a way historically. For anyone (aka. Tracy) who feels that this is such an obviously unConstitutional issue, I want to know why you feel that the precedent of Wickard can be ignored in this case? Some of the Supreme Court justices were mockingly asking questions if the Affordable Care Act's logical conclusion was that the government could mandate buying broccoli, etc. Personally, I don't think it matters if this is the end conclusion of such "mandates." I find that such market regulation to not be forbidden by the Constitution.

I take it that Tracy finds the individual mandate repulsive because it "mandates" the purchase of insurance through the use of coercive penalties (taxes?). Whether this is Constitutional or not has yet to be determined. But you can't deny the broad power to tax, can you? Congress has the power to tax income via the hallowed Constitution. It would be perfectly Constitutional for Congress to levy a healthcare tax on EVERYONE...Then offer an offsetting tax credit to anyone that holds an acceptable health insurance policy. This would have the same income effect-- people would be financially incentivized via the tax code to purchase insurance. However it would not selectively impose a penalty?/tax? on someone who chooses to not do something (even though the private insurance market routinely penalizes market participants for inaction).

[TracyCoxx]

Originally Posted by GRH

I take it that Tracy finds the individual mandate repulsive because it "mandates" the purchase of insurance through the use of coercive penalties (taxes?). Whether this is Constitutional or not has yet to be determined. But you can't deny the broad power to tax, can you? Congress has the power to tax income via the hallowed Constitution. It would be perfectly Constitutional for Congress to levy a healthcare tax on EVERYONE...Then offer an offsetting tax credit to anyone that holds an acceptable health insurance policy. This would have the same income effect-- people would be financially incentivized via the tax code to purchase insurance. However it would not selectively impose a penalty?/tax? on someone who chooses to not do something (even though the private insurance market routinely penalizes market participants for inaction).

I'm going to work so I'll answer the rest of your post later, but I'll respond to this part. If they had replaced penalties with taxes then they would have had a lot stronger case in the supreme court. But they didn't...

[smc]

Originally Posted by TracyCoxx

It is an issue before the court because that is the only argument Obama's administration has that would make it constitutional. They don't have a leg to stand on though. Now it may be subjective in the sense that certain justices are biased. Such as Sotomayor, who would have been one of the ones who would argue the case to the supreme court for the administration. Why hasn't she recused herself? If Sotomayor, or any justice, explains their ruling based on what can be found in the constitution, then I wouldn't call it a biased ruling. But someone like her, who would have been instrumental in arguing the case to the supreme court that she now is part of is obviously a conflict of interest.

My point about subjectivity is not about bias per se. Of course, bias plays a role in subjective judgment. But as I have stated over and again in this particular discussion, my point is about the inherent subjectivity -- independent of all other things -- of deciding the so-called "constitutionality" of anything that is not specifically referenced in the Constitution. I was criticizing the definitive statement "it is unconstitutional" being used by you, or anyone else prior to a ruling, as a statement of fact, rather than "my judgment, based on the arguments, is that this is constitutional," which is a statement of opinion. And, after all, isn't what the Supreme Court issues an OPINION?

As for recusal, why shouldn't Clarence Thomas recuse himself, too? He and his wife have both benefited from specific political contributions made to his wife's organization from people who have made their particular desire to see the Affordable Care Act overturned. What's good for the goose is good for the gander, right?

[transjen]

Everyone knows how the GOP hate goverment ran/sponsered health insurence, but notice how many of em has turned down there's and wentout to buy private insurence
But the GOP should bring a camera crew in to Dick Cheney's private room and have him tell the Americian people how bad goverment ran/sponsered health insurence is and how we will all hate it and will miss and be better off with the current private heath insurence ran mess we all get by
Cheney can then go on about how the goverment ran/sponsered healthcare paid all the bills for his heart transplant [a bill must private insurence compnies won't cover] but you won't like it and you'll be happier with buying your own health insurence from a private provider but Cheney will suffer with goverment ran health insurence he gets for free
Jerseygirl Jen

[smc]

Originally Posted by transjen

Everyone knows how the GOP hate goverment ran/sponsered health insurence, but notice how many of em has turned down there's and wentout to buy private insurence
But the GOP should bring a camera crew in to Dick Cheney's private room and have him tell the Americian people how bad goverment ran/sponsered health insurence is and how we will all hate it and will miss and be better off with the current private heath insurence ran mess we all get by
Cheney can then go on about how the goverment ran/sponsered healthcare paid all the bills for his heart transplant [a bill must private insurence compnies won't cover] but you won't like it and you'll be happier with buying your own health insurence from a private provider but Cheney will suffer with goverment ran health insurence he gets for free
Jerseygirl Jen

Excellent. I hear the insurance Cheney has also fully covers getting accidentally shot in the face by a "friend."

[TracyCoxx]

Originally Posted by transjen

Everyone knows how the GOP hate goverment ran/sponsered health insurence, but notice how many of em has turned down there's and wentout to buy private insurence
But the GOP should bring a camera crew in to Dick Cheney's private room and have him tell the Americian people how bad goverment ran/sponsered health insurence is and how we will all hate it and will miss and be better off with the current private heath insurence ran mess we all get by
Cheney can then go on about how the goverment ran/sponsered healthcare paid all the bills for his heart transplant [a bill must private insurence compnies won't cover] but you won't like it and you'll be happier with buying your own health insurence from a private provider but Cheney will suffer with goverment ran health insurence he gets for free
Jerseygirl Jen

Don't confuse Cheney's healthcare as former VP with the healthcare we would all get under Obamacare. And don't think for a minute that every 71 year old needing a heart transplant would get one under Obamacare.

[TracyCoxx]

Originally Posted by smc

But as I have stated over and again in this particular discussion, my point is about the inherent subjectivity -- independent of all other things -- of deciding the so-called "constitutionality" of anything that is not specifically referenced in the Constitution.

And as I have responded, amendments have been made to the constitution to allow certain laws which were declared unconstitutional because they had no basis in the constitution. Don't you think that says something about laws being made that aren't specifically referenced in the constitution?

Originally Posted by smc

And, after all, isn't what the Supreme Court issues an OPINION?

I was under the impression that they issued rulings. They will explain their position as an "opinion". But realize that this is different than the casual usage of opinion and that terms may have different meanings in the context of law. A "judicial opinion" or "opinion of the court" is an explanation of the order or ruling which lays out the rational and legal principles that the justice relied (in principle, not personal opinion) on in reaching their decision.

Originally Posted by smc

As for recusal, why shouldn't Clarence Thomas recuse himself, too? He and his wife have both benefited from specific political contributions made to his wife's organization

I have no idea what his wife's organization is.

[TracyCoxx]

Originally Posted by smc

You say it is a penalty, not a tax, and that the government has no power to impose such a penalty. Yet, one issue before the Court is, in fact, whether the penalty is a tax.

It is an issue before the court because that is the only argument Obama's administration has that would make it constitutional. They don't have a leg to stand on though. Now it may be subjective in the sense that certain justices are biased. Such as Sotomayor, who would have been one of the ones who would argue the case to the supreme court for the administration. Why hasn't she recused herself? If Sotomayor, or any justice, explains their ruling based on what can be found in the constitution, then I wouldn't call it a biased ruling. But someone like her, who would have been instrumental in arguing the case to the supreme court that she now is part of is obviously a conflict of interest.