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View Full Version : Is the house healthcare reform bill unconstitutional ?



Paul Kartes
12-21-2009, 08:58 AM
We have been discussing it this morning. Is it against the constitution that Nebraska gets a pass on paying for the medicaid reform, while the rest of the states have to pay?

YardleyLabs
12-21-2009, 09:25 AM
We have been discussing it this morning. Is it against the constitution that Nebraska gets a pass on paying for the medicaid reform, while the rest of the states have to pay?
I'm not sure what part of the Constitution it would violate. The 14th Amendment provides for equal protection under the law but that relates only to civil rights of individuals. While the Constitution originally required apportionment of taxes based on population, that requirement was eliminated with the 16th Amendment which allows taxes to be apportioned among the states without regard to population. Nothing in the Constitution dictates how Federal monies will be spent or requires them to be distributed equitably among the states.

What was the basis for believing that such discrimination would be unconstitutional? BTW, it is the Senate bill that provides special exemptions for Nebraska.

BrianW
12-21-2009, 11:02 AM
I believe the whole premise of this bill is unconstitutional in that nowhere in the Constitution does it delegate to the Federal government the authority to force The People to purchase or partake of any particular product or service.

This Federal camel is sticking it's nose into tents that it has NO business being in, and deserves a swift, hard kick in the snout to pull it back out. :-x

Eric Johnson
12-21-2009, 11:39 AM
I posed the question the other day in a message that the bill may be challenged on constitutional grounds. Jeff's answer is hardly the definitive one coming from a non-lawyer.

Lawsuits come about because the plaintiffs have a theory about how they were "wronged". Most suits have a pretty commonplace theory....he hit me, he crashed into my car, etc. Every once in a while an attorney will come up with a wholly new theory given the facts in a specific case. In this case the theory might be " .... every citizen must contribute increased taxes so that the citizens in Nebraska don't have to contribute them. This violates the 6th and 14th Amendments."

Further, the requirement that individuals lose the freedom of choice as to whether or not to buy insurance will likely be challenged. Folks point to the automoble insurance requirements to bolster their argument but it is a wholly different issue. In auto insurance, you are required to carry liability insurance. No state that I know forces you to carry insurance for damages to your car. That's different from being forced to carry insurance to provide your own healthcare. Candidly, I'm not certain that's still in there because I haven't read the bill. Nobody has.

The down-side is that it will take years for these cases to float to the top. A more likely scenario is that a voter revolt will occur and the next Congress will rescind this whole mess.

Eric

PS: IANAL but I managed the Legal Forum on Compuserve for 10 years.

Uncle Bill
12-21-2009, 11:46 AM
A more likely scenario is that a voter revolt will occur and the next Congress will rescind this whole mess.

Eric




We can only HOPE, Eric. But with the sheeple in this nation rapidly out-populating any knowledgeable voters, I fear your statement is wishful thinking.

UB

YardleyLabs
12-21-2009, 01:04 PM
I posed the question the other day in a message that the bill may be challenged on constitutional grounds. Jeff's answer is hardly the definitive one coming from a non-lawyer.

Lawsuits come about because the plaintiffs have a theory about how they were "wronged". Most suits have a pretty commonplace theory....he hit me, he crashed into my car, etc. Every once in a while an attorney will come up with a wholly new theory given the facts in a specific case. In this case the theory might be " .... every citizen must contribute increased taxes so that the citizens in Nebraska don't have to contribute them. This violates the 6th and 14th Amendments."

Further, the requirement that individuals lose the freedom of choice as to whether or not to buy insurance will likely be challenged. Folks point to the automoble insurance requirements to bolster their argument but it is a wholly different issue. In auto insurance, you are required to carry liability insurance. No state that I know forces you to carry insurance for damages to your car. That's different from being forced to carry insurance to provide your own healthcare. Candidly, I'm not certain that's still in there because I haven't read the bill. Nobody has.

The down-side is that it will take years for these cases to float to the top. A more likely scenario is that a voter revolt will occur and the next Congress will rescind this whole mess.

Eric

PS: IANAL but I managed the Legal Forum on Compuserve for 10 years.
I agree absolutely that I am not an attorney and if I were my answer would still not be authoritative. My legal experience extends no further than some relevant courses in graduate school, involvement in a number of different legal cases as a fact witness, expert witness, and/or as part of the team preparing testimony, and management of the litigation support practice in the NY Metropolitan Region for one of what were then the the Big 8 Accounting/Consulting firms. A few weeks ago there was a posting of a Heritage Foundation article alleging that the "personal mandate" would be un-Constitutional. The article was interesting because I believe that it will, in fact, become part of a legal challenge to health insurance reform legislation. I disagree with the memo since I believe that health insurance meets all Constitutional tests for inter-state commerce. However, this is probably an issue that will end up in the Supreme Court.

In this instance, I stated that I did not see an argument of why it would be un-Constitutional for Nebraska to receive special treatment (note, I didn't say I liked the idea). I asked what the argument would be. You state that the argument would be predicated on the fact that some taxpayers will be required to pay more so that Nebraska can pay less. You contend that would violate the 6th and 14th Amendments. I concede your basic premise that some people would pay more taxes because Nebraskans pay less. However, different states now contribute different percentages to Medicaid anyway. Some lower income states pay only 25% of Medicaid costs while others pay 50% or more.

It is not clear to me how the 6th Amendment would factor into this at all. It reads: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence." How is the right to a speedy trial and counsel affected by Nebraska's payment for Medicaid?

The relevant (I assume) portion of the 14th Amendment reads: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The issue would be whether or not exempting Nebraska from paying certain Medicaid costs required to be paid by other states would constitute a denial of equal protection of law. I believe there is an argument that can be made for that, but not one that seems to hold much water given the frequency with which other Federal benefits and mandates are distributed unequally among different states. In addition, if you read it closely, the equal protection clause only applies to actions by state governments, not to Federal action providing different benefits to different states.

Eric Johnson
12-21-2009, 03:52 PM
First of all, I appreciate you bringing to my attention my mis-typing. Rather than the 6th Amendment I meant the 5th Amendment.

Now, what I expressed was how a legal theory might go. I didn't necessarily develop or defend it. It's an interesting question but I'm not qualified to provide the final answer.

Interstate commerce has little to do with the issue I mentioned so far as I can see since the question I raised was purely one of taxation. This gets around the way that the expenditures are apportioned. There is supposed to be a uniform tax system in this country. With this bill, there is not since the citizens of Nebraska will not pay state taxes to support themselves.

Like I originally said, there is a far more likely chance that a voter revolt will lead to a recission of this bill than of court action. It will take years to develop a court case but we are only about 10 months from knowing how the voters will speak. For that matter, the fat lady hasn't sung yet. Reconciling the differences between the House and Senate versions may prove exceedingly difficult, if not impossible.

Eric

Uncle Bill
12-21-2009, 05:06 PM
First of all, I appreciate you bringing to my attention my mis-typing. Rather than the 6th Amendment I meant the 5th Amendment.

Now, what I expressed was how a legal theory might go. I didn't necessarily develop or defend it. It's an interesting question but I'm not qualified to provide the final answer.

Interstate commerce has little to do with the issue I mentioned so far as I can see since the question I raised was purely one of taxation. This gets around the way that the expenditures are apportioned. There is supposed to be a uniform tax system in this country. With this bill, there is not since the citizens of Nebraska will not pay state taxes to support themselves.

Like I originally said, there is a far more likely chance that a voter revolt will lead to a recission of this bill than of court action. It will take years to develop a court case but we are only about 10 months from knowing how the voters will speak. For that matter, the fat lady hasn't sung yet. Reconciling the differences between the House and Senate versions may prove exceedingly difficult, if not impossible.

Eric


How many "REAL AMERICANS" actually understand what's happening to their country?

Does anyone understand that the Democrats running this nation have in the mill enough bills to take over 71% of the private industry. Hellsbells, this healthcare is only a portion of what is being gobbled up by this incredibly insatiable batch of socialists.

We haven't even discussed what the Democrat-led EPA is in the process of taking over, or what Barney Frank has queerly proposed for our financial institutions.

It will take a total revolt to restore any semblence of an America we knew just a few months ago. The power of the Democrats will succeed in accomplishing one of two possible scenarios...either they shove us into complete governmental control with an oligarchy leaning toward fascism...or they self-destruct by overextending their power grab, and the American grass roots finally come to their senses and realize what is happening to them, and they succeed in throwing the bastards out.

UB

YardleyLabs
12-21-2009, 08:15 PM
First of all, I appreciate you bringing to my attention my mis-typing. Rather than the 6th Amendment I meant the 5th Amendment.

...

The 5th Amendment addresses issues related to self incrimination and due process. It reads:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

I'm not sure how tha would be relevant. While I do not thik it would apply, a better bet might be Article 8 of the Sonstitution which reads, in part,:

"The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;"

However, I do not think this would apply since the Nebraska exemption does not affect Federal taxes paid by Nebraska residents.

I understand that you do not believe this will be addressed through the Courts but instead anticipate that it will be addressed through taxpayer revolt (presumably at the polls). You may be right. However, if a valid Constitutional challenge can be made, I would expect it to be initiated as soon as the law is adopted and to be heard before the law's major provisions become effective in 2014 nd possibly before the elections in 2010. Ideologically, I am sure the majority of the current SCOTUS would oppose the proposed health legislation and will overturn it given any tenable argument.

Eric Johnson
12-21-2009, 10:31 PM
Look again. Look at "... nor be deprived of life, liberty, or property, without due process of
law; nor shall private property be taken for public use, without just compensation."

Take this and you're at the point where I said, "Every once in a while an attorney will come up with a wholly new theory given the facts in a specific case."

I didn't say that it would win or lose. It's just thrown together as an example.

The punitive aspects of the bill take effect immediately.....the increased taxes. Whether a case can be cobbled together and fast-tracked in 60-90 days....dunno.

Eric

Bob Gutermuth
12-22-2009, 02:14 PM
The bribery schene that caused Sen. Nelson to cave in may well be a violation of the 14thAmendment. The bribe gave money to Nebraska that was not given to the people of the other 49 states. Additionally, making people purchase something from the govt., is not one of the powers relegated to the Federal Govt

Franco
12-22-2009, 03:55 PM
We can only HOPE, Eric. But with the sheeple in this nation rapidly out-populating any knowledgeable voters, I fear your statement is wishful thinking.

UB

Ladies and gentleman, we have a winner!

That is exactly why we have the politicians we have today. The voter base of those who want the gooberment to take care of them now exceeds the number of tax payers! By tax payers, I mean the people that pay 80% of our taxes, not those getting $25. a month withheld from thier paychecks.

Sabireley
12-22-2009, 08:42 PM
The bribery schene that caused Sen. Nelson to cave in may well be a violation of the 14thAmendment. The bribe gave money to Nebraska that was not given to the people of the other 49 states. Additionally, making people purchase something from the govt., is not one of the powers relegated to the Federal Govt

Senate Majority Leader Harry Reid said the special allowances are just part of the legislating process and defended the lawmakers who asked for them.

"It's the art of compromise," the Nevada Democrat told reporters. "I don't know that there's a senator who doesn't have something in this bill that's important to them. And if they don't have something in it that's important to them, it doesn't speak well of them."

Steve

Gerry Clinchy
12-22-2009, 08:47 PM
As Tom Coburn said (more or less): This isn't legislation. This is corruption.

Eric Johnson
12-23-2009, 09:59 AM
http://blog.al.com/live/2009/12/gop_attorney_generals_includin.html

http://tinyurl.com/ybrot68

GOP attorney generals, including Alabama's Troy King, probe health care deal

By The Associated Press
December 23, 2009, 8:35AM

COLUMBIA, S.C. -- The top prosecutors in seven states are probing the constitutionality of a political deal that cut a funding break for Nebraska in order to pass a federal health care reform bill, South Carolina's attorney general said Tuesday.

Attorney General Henry McMaster said he and his counterparts in Alabama, Colorado, Michigan, North Dakota, Texas and Washington state -- all Republicans -- are jointly taking a look at the deal they've dubbed the "Nebraska compromise."

-more-

Eric Johnson
12-23-2009, 10:57 PM
The count of the number of State Attorney Generals who are looking at the constitutionality of the Reid bill has now reached 7.

K G
12-23-2009, 11:12 PM
Perhaps they can class-action this "bill" until late 2010 when the "nuclear majority" can be undone and maybe return some semblance of democracy to our country.

Cloture should be stricken from our system of government regards,

kg

JDogger
12-23-2009, 11:28 PM
Perhaps they can class-action this "bill" until late 2010 when the "nuclear majority" can be undone and maybe return some semblance of democracy to our country.

Cloture should be stricken from our system of government regards,

kg

Well, at least until 2011. Huh?

JD

Eric Johnson
12-23-2009, 11:30 PM
Apparently the number of state AG's is now up to 10.

One third of the Senate is up for re-election in 2010. In addition, a couple of elections will occur to fill unexpired terms....Illinois and Mass. come to mind. Are enough Democratic Senators running for election that if they lose, the majority will shift? Dunno.

Eric

JDogger
12-23-2009, 11:56 PM
I think we can count on the party of obstruction to continue. When, oh when, will they actually come up with a viable alternative?

The health care bill, and the NE and NV exclusions...

If they are contested...?

Who will be the first state AG, to make this their cause, and put themselves on the line?

Any guesses?

JD

K G
12-24-2009, 08:37 AM
Well, at least until 2011. Huh?

JD

ForEVER, J Dogg....ForEVER.....


I think we can count on the party of obstruction to continue. When, oh when, will they actually come up with a viable alternative?

JD


I'm wondering the same thing, JDogg....there's still a chance this health care bill can be made palatable.....

































oh...........























You mean to say the Republicans are the obstructionists...and for a minute I actually thought you were broad-minded....oh well....:rolleyes:

kg

K G
12-24-2009, 08:40 AM
Apparently the number of state AG's is now up to 10.

One third of the Senate is up for re-election in 2010. In addition, a couple of elections will occur to fill unexpired terms....Illinois and Mass. come to mind. Are enough Democratic Senators running for election that if they lose, the majority will shift? Dunno.

Eric


A shift of just ONE will be a good start, although a greater shift is needed to show our President that the decisions he is supporting and the votes cast by the Congress are NOT supported by the MAJORITY of the American people.

He sure followed the polls while he was running. He's ignoring them now....hope he keeps that up! ;-)

kg

Eric Johnson
12-24-2009, 10:28 AM
Keith-

The problem in passing this thing is very different from rescinding it. The Dems needed 60 votes to be certain that the bill wasn't filibustered to death. Once it passes, the Repubs will need the 60 votes to prevent the filibuster. That means a swing in attitude or persuasion of 20 members of the Senate. That's huge!

Eric

K G
12-24-2009, 10:57 AM
Keith-

The problem in passing this thing is very different from rescinding it. The Dems needed 60 votes to be certain that the bill wasn't filibustered to death. Once it passes, the Repubs will need the 60 votes to prevent the filibuster. That means a swing in attitude or persuasion of 20 members of the Senate. That's huge!

Eric


We just need to stop the landslide that will bury us all.....

kg

Uncle Bill
12-25-2009, 02:10 PM
We just need to stop the landslide that will bury us all.....

kg

And it's always nice to see the "INDEPENDANTS" view on these issues eh?

Pretty much like the so-called Blue Dog Democrats....

THEY ARE "ALL" SOCIALISTS!!!

But like the phoney indies on this board, they continue thinking we don't see them for what they are.

Is there any doubt what you are DNF or Jdogger, or Yardley, or the others that reside here proclaiming their independance, while never missing a beat in falling on the sword for the Democrat majority.

If it's anything that pisses me off, it's their attempt at convincing us they are something they are not, and their condescending patronizing. I'm tired of you thinking I'm that stupid to believe you are anything but George Soros/Algore/Obama disciples. So please stop your phoney charade. We might have more respect for you if you find a principle and stick with it.

UB

YardleyLabs
12-25-2009, 02:40 PM
Perhaps they can class-action this "bill" until late 2010 when the "nuclear majority" can be undone and maybe return some semblance of democracy to our country.

Cloture should be stricken from our system of government regards,

kg
So you believe, for example, that a small minority of Senators should be able to completely block appointment of conservative judges if they so choose?:rolleyes:

JDogger
12-25-2009, 04:40 PM
How to fall on your sword

Falling on one's sword is a particularly meaningful and honorable activity, but sadly one not everyone is able to do. This article aims to teach a prospective sword-faller the tricks of the trade. Keep in mind that in all likelihood you will only have one shot at this, so read the entire thing carefully before attempting this.
If you have attempted to fall on your sword already and are reading this, you have failed. Next time, follow directions and read the entire article before proceeding.

Setup

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Next, have a deep and thought provoking conversation with this person. Reject the idea of falling on your sword outright, but slowly warm to it. Be sure to discuss the meaning of life and ultimately deliver a monologue about honor and/or courage. Or something. If you do not have a sword yet, someone will give one to you now.
Now you are ready to continue to the next step.

Execution

You are finally ready to fall on your sword. This is the hardest step, so here are some common mistakes and how to avoid them.

Common mistakes

Do NOT attempt to place the sword on the ground and then fall on it. The sword will fall over and you will end up looking like an idiot. Hold the sword the entire time you are falling on it.
Do NOT suddenly decide that you'd rather not fall on your sword and turn it on someone else. The sword will almost certainly be rigged so that it kills you anyway, and you will end up looking like an idiot.
DO make sure not to impale yourself in any part of the body other than the chest. Doing so will lessen the drama and make you look like an idiot. Likewise, do NOT attempt to find out what having a sword in the genitals feels like.Keeping the above in mind, proceed to grasp the sword with both hands and extend them in front of you so that the sword is pointing back towards your heart. Keeping the sword in this position, lean forward by your toes until you begin to fall. Continue falling until the sword pierces your chest and completely impales you.
If you successfully impaled yourself but are still reading this, you may now deliver another monologue. Be sure to dramatically conclude it... with your... last... breaths.



http://images4.wikia.nocookie.net/uncyclopedia/images/thumb/5/59/Fall-on-sword.png/200px-Fall-on-sword.png (http://www.retrievertraining.net/wiki/File:Fall-on-sword.png)
Always hold the sword up when falling on it. Never attempt to see what a sword to the crotch feels like

K G
12-25-2009, 09:27 PM
So you believe, for example, that a small minority of Senators should be able to completely block appointment of conservative judges if they so choose?:rolleyes:

Sorta like one or two Senators can extort their colleagues into BUYING their votes?

Nothing like EQUALITY for all, huh Jeff? So Nebraska and Louisiana get special treatment because Harry Reid et al caved to get the votes they needed on Health Care? The sky's the limit now.......

Conservative judges (a LOT safer for the country than liberal judges, IMHO) are the LEAST of our problems right now. Congress has a hard time obeying laws as they are written, much less how they will be interpreted in the future.

:rolleyes: INDEED regards,

kg