That Other Individual Mandate Lawsuit

Slowly, but surely, Obamacare is going to unravel and be exposed as poorly written, virtually unmanageable legislation that NEVER should have passed in the first place. Democratic lawmakers in their rush for “victory” saddled the American people with the poorest excuse for HCR imaginable….it simply could not be any worse. Obama said he “owns” it and indeed he does. It could very well turn out to be his worst nightmare. A special thank you to Nancy and Harry, for giving birth to this American malady.May it forever be your legacy.

Kate Pickert:
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You write:
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“The Virginia ruling disappointed health reform advocates, but it was not a surprise.”
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Don’t you mean to say that the ruling disappointed PPACA advocates, not necessarily “health reform” advocates?
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Aren’t these two different sets of people who believe two different sets of things about the advisability (or the constitutionality, for that matter) of the PPACA?
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For example, I’m sure that PPACA advocates –or partisan Democrats, or Obama supporters, or health insurance flacks, or sympathetic columnists, or whomever– might find issue with statements like this one, from the Wikipedia entry “Health Insurance Mandate”

http://en.wikipedia.org/wiki/Health_insurance_mandate
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A health insurance mandate is a type of individual mandate by which a government requires that its citizens purchase health insurance or face a monetary fine.
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Supporters contend that the mandate is intended to prevent the adverse selection often claimed by insurance companies, by ensuring healthy individuals purchase insurance and thus broaden the risk pool.[1]
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However, empirical evidence suggests that the threat of adverse selection is exaggerated,[2] and that risk aversion may balance it.[3] Without mandates, for-profit insurers necessarily rely on risk aversion to charge premiums over expected risks, but are constrained by what customers are willing to pay; mandates eliminate that constraint, allowing insurers to charge more.[4]

, but many people solely concerned with advocating health reform itself –without any other ideological or partisan issues attached– welcome such empirical findings into their conclusions.
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Or do you not believe that one can simultaneously advocate for health reform and against the individual mandate for some reason that doesn’t immediately come to mind, Kate Pickert?

it would be a second brutal court blow to the Obama Administration.

Two other federal judges have ruled the mandate is constitutional.

Were these decisions brutal blows to the various opponents of the ACA?

We have heard so little about those and so much about the (no bias) Hudson ruling and now about the Florida one.

I love medias selective choice of the blows, upper cuts, bend overs. Lets just ignore the facts and focus on whatever emotional language makes people angry.

This is a pointless topic, interesting but pointless.
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Pretty much everyone agree’s this is going to the Supreme Court and ultimately as we all know they trump lower courts. So why are people keeping score? Ooooo it’s 2-1… but the opponents may soon make it a tie 2-2! WHO CARES!?
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There’s only one court opinion that will matter on this and we should all just wait until the cases have worked their way up to the SCOTUS and see what they say.

But Ivy_B, those other decisions don’t fit into the narrative. And nothing can get in the way of the narrative once the narrative has been decided upon.

Kate Pickert-
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I see you are singing a very different tune than you did with your December 13th post on the Virginia ruling. In that post you said:

The Obama Department of Justice will appeal today’s decision, which counts as an outlier. Every other ruling on similar constitutional challenges has been batted down by a federal judge.

So, then the Court’s ruling was merely an outlier to “every other ruling,” i.e. two, but today it is a “second brutal blow?” I’m confused, the first was merely an “outlier” but now you are saying the first was a”brutal blow” as well? Are you on drugs?

Two other federal judges have ruled the mandate is constitutional.
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I find it intersting that I hadn’t heard about these two cases until the other day when I read about Hudson’s ruling. And then those rulings were just a mention, an afterthought, tagged onto the Hudson piece as a sort of explanation that this isn’t done yet.
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A couple nights ago Rachel Maddow was explaining how liberal stances are seldom, if ever, reported on by the beltway media. Look at the little bit of coverage Sanders got after a speech nearly 9 hours long. If Sanders had been a republican, we’d still be reading and hearing excerpts a week later.
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Liberal media? Yeah, I wish. Inside the beltway, its all to the right of center.

Are Ivy_B and docreviewer01 on drugs, too? I certainly hope so. On the 13th, Kate Pickert posted on the Virginia court’s ruling by Judge Hudson, in which she said the decision was merely an “outlier” to “every other decision.” On that day, she was being intentionally disingenuous, referring to the two decisions supporting the individual mandate as “every other decision,” an intentionally bloated sounding phrase. In that post she also completely failed to report on the court’s reasoning for its decision, instead going to great lengths to lay out the administration’s arguments and to paint the opposition to the individual mandate as Tea Party obstructionism. Oh, how quickly you turn on your own.

Those two cases were reported and written about here, without the questioning of the partisanship of THOSE TWO judges. But, when the last judge ruled, correctly, that the government cannot make a citizen purchase a product as a requirement of being a free American citizen, he was of course maligned as a Republican partisan.

Erie,
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Did you read Kate Pickert’s piece on the Hudson ruling? She never even explained the court’s ruling, just dropped a one-liner about the court ruling the individual mandate is unconstitutional. What she did do very thoroughly, however, was explain that the Hudson ruling was just an “outlier” to “every other decision,” .i.e. two, and explain the administration’s position to the fullest. Oh yea, she also painted opposition to the individual mandate as strictly political and partisan. Are you, Ivy_B, and docreviewer01 all smoking the same thing? Can I have some?

And we don’t care that the judge in teh VA case had a financial interest in the case. Were you so forgiving when the judge in LA actually had stock in companies in the BP case? Judges are losing any credibility with their continued rulings in cases where they have a financial interest. I guess that is a Republican thing!

Good catch Exiled. I totally forgot about that post… which I assume was what she was hoping for.

On the other hand, with the latest election results in mind, it would appear that Democrats have already lost their credibility with the people…

“On the other hand, with the latest election results in mind, it would appear that Democrats have already lost their credibility with the people…”
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If that were the case, then Republicans lost credibility in 2006 and 2008 and gained it back again.
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One thing is unimaginable with 72 million Democrats, 55 Million Republicans and only 42 Million independents for the Democratic Party to lose credibility over the long term.
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It’s independents who are going extinct.

Google Judge Roger Vinson and you will see that he is Reagan appointee.

By 2010 standards Reagan was RINO, but, he will, likely, vote Republican in this ruling.
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If he does, it is the impartiality of the judiciary which would be called into question. (By Democrats about the decisions of Republican appointees and by Republicans of Democratic appointees).

NewsBusters: TIME’s Pickert Worries About ‘Second Brutal Court Blow’ to ObamaCare
http://newsbusters.org/blogs/ken-shepherd/2010/12/16/times-pickert-worries-about-second-brutal-court-blow-obamacare

“Because the penalty is a tax, the department says, no one can challenge it in court before paying it and seeking a refund.

Jack M. Balkin, a professor at Yale Law School who supports the new law, said, “The tax argument is the strongest argument for upholding” the individual-coverage requirement.

Mr. Obama “has not been honest with the American people about the nature of this bill,” Mr. Balkin said last month at a meeting of the American Constitution Society, a progressive legal organization. “This bill is a tax. Because it’s a tax, it’s completely constitutional.”

Mr. Balkin and other law professors pressed that argument in a friend-of-the-court brief filed in one of the pending cases. ”
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http://www.nytimes.com/2010/07/18/health/policy/18health.html
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This was a July 17th article.
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I can see the tax argument the best due to the administration of it.
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When one gets fined by a PO, it goes on your driving record and adversely impacts your insurance, your ability to get hired as a professional driver and your ability to get issued a company owned car among other things.
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The same goes for fines from the EPA, OSHA, The NLRB… every agency.
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Since the payment due is to the IRS, which issues fines exclusively for non-payment of taxes and nothing else and does not adversely impact any other aspect of one’s life, then it operates exactly like the tax incentives to buy a house, open an IRA, open a 401k, to get married or to have children. All of those other incentives are not called “fines”.
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If one does action A and their taxes go from X to X – B (B being a positive number) it is called a tax incentive.
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Action A includes getting married (not provided by government), IRA accounts (not provided by government), buying a home (not sold by government and not often financed by government), etc, etc.
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If you say X- B = C with C being your post incentive/deduction tax then you can say that not doing action A causes a fine of B since the new tax will be C +B. If you say that, then you will have to say that the government is “fining” people for being unmarried, not buying a house, not opening an IRA, etc, etc.
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So, it stands to reason that if this is overruled, a judge who rules that C (the tax level one ends up with after an incentive) is the starting point, then deductions of all kinds would, also be fines and, therefore, the government “mandating” what one does.
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Last I saw the numbers, considering I am healthy, I may choose to pay the “fine” (tax) than buy expensive health insurance until I am older or have children. I would not, say, drive through red lights, park in restricted areas, etc, etc and get a regular fine since there are adverse consequences to real fines but none to paying additional tax.

@patrick
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I’m not so sure that the Republicans gained any trust back.
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I think a number of Republicans are correct in saying that this wasn’t a vote of confidence for the Republicans, it was a vote of no confidence for the Democrats. There just wasn’t a serious third choice.

Less important than keeping score of how many judges ruled ‘for’ and how many ‘against’ there’s the question of which opinions require twisting current case law into pretzels and which flow straightforwardly from precident.

The quilaity of the opinions will have an effect on any Supreme court determination and my understanding so far is that the VA judge’s was so convoluted that even Conservatives recognizied that it might have done more harm than good.

You liberal clowns DO realize that if it is ruled Constitutional that the government can force you to purchase health insurance as a requirement of citizenship, then you really don’t have any rights. Your rights will again revert to what the overlords decide what they should allow and we can continue to devolve back to serfdom.

“There just wasn’t a serious third choice.”
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That is a reasonable hypothesis.
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My hypothesis remains that Democrats who stood by the party platform held their ground (progressive Democrats) as Republicans who stood their ground did, too. It was the wishy washy who lost. If the public option were still in there, ACA would be far, far more popular.

Exiled, I commented only on the post before us and the way that is phrased. What was said on December 13th is irrelevant to my comment.

Meltdown.
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It is a tax.
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Yes, the president put a spin on it, but he put the wrong spin on it. The spin he put on it was that it was a “fine”.
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It has been predicted all along that a reasonably large percent will pay the tax rather than buy over priced health insurance. This is not true of, say, speeding, parking, OSHA regulations, EPA regulations, etc, etc.
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It is a tax or a purchase, just like it is for buying a first home. Unlike how the state government will confiscate your car if it is uninsured, nobody is going to confiscate your body if your body is not insured.

Meltdown,
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For what it’s worth, if the federal government were going to impound your body for not insuring yourself the way state governments impound your car, I would agree with you.
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Since it is a tax which will not prevent you from getting hired at your next job, from getting a home loan, damage your credit rating, be a mark on your criminal record, but, instead, require that you not get a tax break, I support it.

Here you go Sartor. Enjoy reading about the power to tax by the Federal government.
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“Like the commerce power, the power to tax gives the federal government vast authority over the public, and it is well settled that Congress can impose a tax for regulatory rather than purely revenue-raising purposes. Yet Congress cannot use its power to tax solely as a means of controlling conduct that it could not otherwise reach through the commerce clause or any other constitutional provision. In the 1922 case Bailey v. Drexel Furniture, the Supreme Court ruled that Congress could not impose a “tax” to penalize conduct (the utilization of child labor) it could not also regulate under the commerce clause. Although the court’s interpretation of the commerce power’s breadth has changed since that time, it has not repudiated the fundamental principle that Congress cannot use a tax to regulate conduct that is otherwise indisputably beyond its regulatory power.”

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http://www.washingtonpost.com/wp-dyn/content/article/2009/08/21/AR2009082103033.html
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http://www.oyez.org/cases/1901-1939/1921/1921_657

“if it is ruled Constitutional that the government can force you to purchase health insurance as a requirement of citizenship, then you really don’t have any rights.”
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There is a good deal of merit to that argument, one of the reasons why so many liberals are opposed to the policy.

Rusty,
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I appreciate that you are using reliable sources, but,
you may not be aware that the precedent was overturned in 1953 in United States v. Kahriger.
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http://en.wikipedia.org/wiki/Bailey_v._Drexel_Furniture_Co.
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I find it very interesting that so many conservatives describe the 1950s as a conservative ideal when, in reality, it was when the US had the largest percentage of it’s workforce belonging to unions and when the long term policies of the New Deal were accepted and tolerated by Eisenhower Republicans.
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Maybe it’s just the cool 1950s cars conservatives like. I like those types of car, too.
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Stuart,
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You are a reminder that “liberal” like “conservative”, “libertarian” or any other philosophy has many interpretations.
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All I see is another tax incentive and nothing more.
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If a report was issued to future employers, it impacts one’s credit score, if there were a chance of imprisonment, etc, then I would consider it a fine and an infringement on my freedom.
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Like you, I would love to see the public option brought back in during the next Democratic majority and, as most would predict, the public option would drive the private insurance companies out the health care business. Driving insurance companies out of health insurance will settle the whole issue of who is more efficient with health care.
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Unlike you, I believe that the more of this weak health care package gets struck down, the less likely it will be that we have anything like the public option in the next 30 years.

Simple question here… well sort of.
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Let’s say that the courts buy the line that this is a “tax”… what exactly is it a tax on?
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Normally taxes are on something you have. You pay sales tax to acquire something, or income tax to acquire money, or property tax on your property which you own.
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This “it’s a tax and Congress has the power to tax” argument strikes me a impotent. Were I a judge hearing this case I would ask the following:
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“OK, it’s a tax. What’s it a tax on?”
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“Not having health insurance.”
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“OK, so now you’re telling me that the government can put a tax on something people don’t have? What’s next counselor? To prop up GM there’s a “tax” if you don’t buy a GM car? Or a “tax” on not buying enough vegetables? Or a “tax” on not jogging 3 miles a day?”
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“That’s not really the point Your Honor…”
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“You’re trying my patience here counselor. Are you seriously here to argue that the government has the right to tax something that people don’t possess and may never possess or don’t do and may never do?”
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“Essentially, yes Your Honor.”
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“You’re going to have to do better than that counselor, I find for the plaintiff and don’t you ever come back in my court room with balderdash like this”

“Simple question here… well sort of.
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Let’s say that the courts buy the line that this is a “tax”… what exactly is it a tax on?”
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A poll tax.
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“In general, a poll tax or capitation tax is a head tax set at a fixed amount per person. Sometimes, the tax is calculated according to a schedule or formula giving different amounts for different sets of people, e.g. only applying to males from the age of sixteen to sixty not otherwise exempt, on pain of forced but paid labour in lieu (see Corvée in Madagascar).

Outside the United States the term poll tax refers only to such a head tax, without any of the implications of U.S. practice or usage.”
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http://en.wikipedia.org/wiki/Poll_tax
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It is allowed unless the tax is in lieu of the the right to vote or other basic government services. If it is a tax for existing or having a head on top of your shoulders, it is allowed in the US.
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Ironically, this is a tax that conservatives often adore.
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“The Community Charge was a poll tax to fund local government in the United Kingdom, instituted in 1989 by the government of Margaret Thatcher. It replaced the rates that were based on the notional rental value of a house. The abolition of rates was in the manifesto of Thatcher’s Conservative Party in the 1979 general election, and the replacement was proposed in the Green Paper of 1986, Paying for Local Government based on ideas developed by Dr Madsen Pirie and Douglas Mason of the Adam Smith Institute. It was a fixed tax per adult resident, but there was a reduction for those with lower household income.”
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http://en.wikipedia.org/wiki/Tax_per_head
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Poll taxes can have exemptions.
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You pay the poll tax due to existing inside of the United States unless your income is too low or you purchase health insurance.