Texas will join lawsuit against HC Bill....

Sorry, I should have said for the first time ever in a free society.

 

Doesn't mean they can force people to engage in commerce.

And even if they could, how would it qualify as interstate?

 

The real problem here is that it is the first time that EVERYBODY must compulsorily purchase a product and the failure to purchase said product can result in a penalty of up to 2.5% of your income.

People often say that government makes you buy car insurance. Not true. If you live in New York and do not own a car and take the subway everywhere, you buy no car insurance.

This is the first time that you are required to purchase a product under the pain of civil penalty. I am not sure that this will pass muster under the Contract Clause of the Constitution. It will be a very interesting legal argument.

 

This seems to be the biggest issue anyone has with the bill.

And quite frankly, I'm puzzled as to why that stipulation was necessary to get this thing passed.

 

It is not frivolous so long as a valid Constitutional question is presented. I believe that a valid question involving the Contract Clause can be raised.

 

it will be - in 2014 when that kicks in.

And I don't think it will be that interesting. This is a taxation issue. YOu're required to demonstrate proof of insurance or you have to pay extra to the IRS. THe IRS requires many things under pain of fines.

 

Bull****.

We do tax everybody for SS. That is not even the same thing as requiring everybody to purchase a product from a private seller or face a stiff penalty.

It is incredibly easy to distinguish the two.

 

That is really the only legal fuzzy area to me. Even though it does not kick in until 2014, the question is still there in the bill as passed. It may not be ripe, but the states will try to raise it anyway. The state may be allowed to proceed. Time will tell.

 

That is a part of how we are going to pay for this thing.

 

Not really. The civil war settled that argument.

If somebody doesn't want to buy insurance, and will be harmed by this tax penalty, they will have to actually exist before they can sue the government about it.

 

That's not quite true - there are plenty of people exempt from it. For example, if you have no income, you have no requirement to buy insurance. So it could be just looked at as a cost of being employed. Basically, everyone pays a tax if they are employed at a certain wage level, and then if you buy insurance, you get a tax credit. There's actually no "mandate" specified in the bill, though I'm not sure how that works in terms of the courts.

 

The whole system works together. If you want to cut costs, you have to have a mandate. If you want to eliminate preexisting conditions, you have to have a mandate. If you have a mandate, you have to have subsidies. Those are all interdependent on each other. If you take out the mandate, the bill doesn't work.

 

Well, at some level, I say fine.

You MUST have insurance to drive. If you want to avoid having a car and avoid driving completely, that is your right. But you CANNOT then drive, even for just a block, or just one day to pick someone up at the airport, or just for one vacation -- nothing.

So, I'm fine with creating a class of people that can never, ever use american medical facilities under any circumstances. It would look cruel, but people would have made that choice, come coronary or broken leg or whatever else.

 

You didn't phrase it appropriately. The government makes you buy car insurance to drive a car and the government will make you have health insurance to get medical treatment. Even if people signed some sort of waiver saying they wouldn't get medical treatment, they'd receive treatment anyway if they were in an accident so it's not something that you could reasonably opt out of like simply not driving a car.

 

March 23, 2010
The Honorable Gregory W. Abbott
Attorney General
209 West 14th Street
Austin, Texas 78701

Re: Litigation Against the Federal Government Challenging the Patient Protection and Affordable Care Act (H.R. 3590 signed into law March 23, 2010) and related legislation

Dear Mr. Attorney General:

We are very disappointed by your decision to file suit against the federal government because you believe that the Patient Protection and Affordable Care Act “violates the United States Constitution and unconstitutionally infringes upon Texans' individual liberties.”

Article VI of the United States Constitution declares federal law the supreme law of the land. Since Congress passed this legislation under its constitutional grant of power under Article I, Section 8, Clause 1, it is unclear how any case based on "Texas' individual liberties" or the 10th Amendment is legally sound.

In the current suit as well as your January 5, 2010 letter to Senators Hutchison and Cornyn, you contend that Congress is overstepping its authority under the Commerce Clause by imposing a tax penalty on individuals who choose not to buy health insurance. A thorough reading of case law does not support your assertion. Federal courts, including the U.S. Supreme Court, have time and again given Congress broad authority under the Commerce Clause to regulate interstate commerce and impose taxes. Your assertion clearly ignores a more current case (Gonzales v. Raich) in which the U.S. Supreme Court looked at the legislation as a whole to determine if the individual provision was necessary to achieve the stated economic objectives.

Many scholars have stated that Gonzales v. Raich decision provides a sufficient basis for Congress to mandate that individuals purchase health insurance. Notably, President Ronald Reagan's Solicitor General, Charles Fried, stated yesterday that the federal health law's requirements are nothing new: "[w]e have tons of laws that impose obligations on people," he said, "and some people would rather not participate, starting with the Internal Revenue code" — or the draft in wartime, or Social Security, or environmental restrictions on the states.

Furthermore, nullification and secession as popular American legal theories were tested, fought and defeated at Appomattox. The 10th Amendment does not allow a Texas governor to secede—or a Texas Attorney General to sue—just because they want to score political points. As a Texas taxpayer, we ask you to quit wasting taxpayer money with threats of lawsuits destined to lose, go back to work on issues like predatory lending or toxic contamination in Texas air and water, and shelf these divisive, extreme and losing ideas.

While you are free to hold whatever personal view you care to hold, given that Texas state agencies are being asked to cut their budgets by 5 percent, and the Legislature has neither appropriated your office the funds for nor instructed you to pursue such litigation, this action has all the markings of a frivolous lawsuit.

We would also question why you would file a lawsuit that, if successful, would ostensibly result in the reimplementation of the worst practices of the insurance industry. It is disconcerting that you would expend state resources in an attempt to repeal small business tax credits, repeal tax subsidies to middle income families, reinstate the Medicare "donut hole," allow insurance companies to indiscriminately drop people from their coverage, and prevent Texas from receiving any of the myriad pro-consumer reforms in the legislation.

To our knowledge, the Legislature has not instructed you to institute this suit nor has it specifically appropriated money for the proposed litigation. Please explain what constitutional or statutory provisions authorize you to bring this type of lawsuit. Also, please explain how you have obtained the consent of your client, the State of Texas, under the applicable provisions of the Texas Disciplinary Rules of Professional Conduct. Finally, please explain how you intend to pay for the litigation.

Finally, please provide our offices with copies of any legal briefs or memoranda prepared by your office that address in any way the questions in the preceding paragraph. To the extent that you seek to withhold any information, please note that this request for information is made for legislative purposes under Section 552.108 of the Government Code.

We look forward to hearing from you promptly.
Sincerely,
Garnet F. Coleman Eliot Shapleigh
State Representative, District 147 State Senator, District 29
Trey Martinez Fischer Rodney Ellis
State Representative, District 116 State Senator, District 13
Jessica Farrar Leticia Van De Putte
State Representative, District 148 State Senator, District 26
Sylvester Turner
State Representative, District 139 cc: Governor Rick Perry

 

I can join and sue his azz for wasting the tax payers' money?

 

Look up Supreme Court interpretation of the commerce clause post the Great Depression. There are multiple instances (Wickard vs Filburn, Gonzalez vs. Raich) where the SC gives Congress the ability to regulate activities that aren't directly commercial but affect commerce. In Wickard, Congress was allowed to put a quota on non-commercial wheat production to keep the market price up. This really isn't too far of a leap from that.

 

The Supreme Court will not even hear this case. Anthony Kennedy isn't going to go there. Do you really think the nation can stomach having the Supreme Court override one of the biggest pieces of legislation that took a year for Congress to enact without any precedent? That would be shocking and basically mean the Court has legislated from the bench.

The fact that Republicans are throwing lawsuits, procedural rules, and also working to overturn it at the national level just speaks to how unified they are against this bill.

That may pay dividends for them in 8 months, but it could really back fire as well, especially since most social / welfare type programs of this scale become immensely more popular over time, not less (minimum wage, social security, medicare)

Once this is past, trying to overturn it might actually become political suicide for the Republicans.

 

Yes it is. Which is my point. If the SC declares this reform unconstitutional, they will be declaring any privatization of Social Security to be unconstitutional as well.

The Court would be saying that the only type of health care plan that is constitutional would be a government run single payer system -- like Medicare or SS, systems that already are constitutional.

 

The 10th Amendment was supposed to ensure that the federal government only had powers enumerated in the Constitution. They could only do what the constitution says they can do.

But the general wellfare clause and the commerce clause have been used to render the 10th amendment meaningless.

The founders intended that Congress could only do what is expressly permitted in the constitution. Now instead, Congress can do anything they want that isn't expressly forbidden.

Congress could force everyone to purchase a hybrid car or solar panels and claim it promotes the general wellfare. That's no different than the HC mandate just signed into law.

And for whomever asked why the mandate is necessary. The state needs to force healthy people to subsidize unhealthy people. You will pay for gastric bypass for fatties, new livers for drunks, etc.