The RetrieverTraining.Net Forums The Retriever Academy
Total Retriever Training with Mike Lardy
Hawkeye Media Gunners Up Tritronics Outdoor Media
Page 1 of 3 123 LastLast
Results 1 to 10 of 28

Thread: Is the house healthcare reform bill unconstitutional ?

  1. #1
    Senior Member Paul Kartes's Avatar
    Join Date
    Jun 2006
    Location
    Harvard, IL
    Posts
    197

    Default Is the house healthcare reform bill unconstitutional ?

    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?
    Paul Kartes
    Lakota Retrievers

  2. #2
    Senior Member YardleyLabs's Avatar
    Join Date
    Dec 2006
    Location
    Yardley, PA
    Posts
    6,639

    Default

    Quote Originally Posted by Paul Kartes View Post
    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.

  3. #3
    Senior Member BrianW's Avatar
    Join Date
    May 2005
    Location
    Athol, North Idaho
    Posts
    885

    Default

    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.
    "It's not that government is inherently stupid, although that's a debatable question."
    Rand Paul CPAC speech 2011

    I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it. Thomas Jefferson to Archibald Stuart, 1791
    ________________________________________
    Proud partner of (HR) WR SR Brian's 44Magnum Monster
    co-owned by HR Rianne's 2nd Chance Hurricane Rebel

  4. #4
    Senior Member
    Join Date
    Dec 2004
    Location
    Wetumpka, AL
    Posts
    3,010

    Default

    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.

  5. #5
    Senior Member Uncle Bill's Avatar
    Join Date
    Jan 2003
    Location
    Rapid City, SD
    Posts
    4,289

    Default

    Quote Originally Posted by Eric Johnson View Post

    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
    When the one you love becomes a memory, that memory becomes a treasure.

  6. #6
    Senior Member YardleyLabs's Avatar
    Join Date
    Dec 2006
    Location
    Yardley, PA
    Posts
    6,639

    Default

    Quote Originally Posted by Eric Johnson View Post
    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.

  7. #7
    Senior Member
    Join Date
    Dec 2004
    Location
    Wetumpka, AL
    Posts
    3,010

    Default

    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

  8. #8
    Senior Member Uncle Bill's Avatar
    Join Date
    Jan 2003
    Location
    Rapid City, SD
    Posts
    4,289

    Default

    Quote Originally Posted by Eric Johnson View Post
    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
    When the one you love becomes a memory, that memory becomes a treasure.

  9. #9
    Senior Member YardleyLabs's Avatar
    Join Date
    Dec 2006
    Location
    Yardley, PA
    Posts
    6,639

    Default

    Quote Originally Posted by Eric Johnson View Post
    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.

  10. #10
    Senior Member
    Join Date
    Dec 2004
    Location
    Wetumpka, AL
    Posts
    3,010

    Default

    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

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •