What Happens Next? Health Care...

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Postby Satya » Tue Mar 23, 2010 6:31 am

And you should probably stay there for awhile.

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Postby Syphon the Sun » Tue Mar 23, 2010 7:09 am

This is why it's not worth it for me to get into legal discussions with non-law people. You have neither the knowledge of the law nor the willingness to actually obtain that knowledge necessary for such a discussion.

re: "general welfare"
The Spending Clause does not give Congress the power to regulate anything and everything so long as it is for the "general welfare" of the people. It only gives them the power to collect taxes and to appropriate the funds raised thereby to promote the nation's general welfare. U.S. v. Butler, 297 U.S. 1 (1936). The general welfare portion is not a grant of power, but a specific limitation on the power to tax. Gebelein v. Milbourne, 12 F.Supp. 105 (D. Md. 1935); U.S. v. Boyer, 85 F. 425 (8th Cir. 1898). Here, they're not simply taxing/appropriating and, accordingly, the spending clause does not grant them the authority to regulate in that way.

More later. I've got a pre-trial hearing at nine.
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Postby jotabe » Tue Mar 23, 2010 7:18 am

This is why it's not worth it for me to get into legal discussions with non-law people. You have neither the knowledge of the law nor the willingness to actually obtain that knowledge necessary for such a discussion.
Yeah, right, because the knowledge of the law is such an objective and scientific branch of knowledge :roll: Everybody interprets the laws in the same way, and laws certainly do not change.
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Postby Wil » Tue Mar 23, 2010 7:21 am

I don't know if it is within the rights of the government to do what they did, and quite honestly I don't care. All I do care about is the following:

It is completely insane that if you are working, and you get very sick, and you need health care, and you can't work while sick, and they fire you, that you also lose your health insurance and thus you are essentially sentenced to death.

It is also insane that if you get some disease, fight it, and survive it, then change jobs, get a new health provider, and your disease relapses, that they can refuse to treat it because it is "preexisting".

I admit I know little about the bill that passed, but I hope this bill fixed these glaring health insurance s***-stains.

Now, I also think it is stupid that when I took a semester off from school two years ago to help my mother that I was without any kind of insurance for over eight months. However, I also know that the county hospital would have taken me and I wouldn't have had to pay anything because they are (were, actually, not so much now) so well funded by medicare and Medicaid.

If I can live, but only live by having advanced treatments done on me, but I don't happen to have insurance... well it seems like a pretty s***** day when I'm refused treatment (and thus sentenced to death) because I don't have the money for it.

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Postby Eddie Pinz » Tue Mar 23, 2010 7:57 am

This is why it's not worth it for me to get into legal discussions with non-law people. You have neither the knowledge of the law nor the willingness to actually obtain that knowledge necessary for such a discussion.
Well I wasn't sure what side of the debate I was on (actually I just don't care), but now that I see that nobody can stand up to the awesome knowledge that is Syphon the Sun, I absolutely side with him.

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Postby starlooker » Tue Mar 23, 2010 9:01 am

This is why it's not worth it for me to get into legal discussions with non-law people. You have neither the knowledge of the law nor the willingness to actually obtain that knowledge necessary for such a discussion.
I generally like it when people who know their stuff post in detail about what they know. I develop crushes on some of them (e.g., Ali, Ollie, Jotabe). Even when I disagree with them. But the way you present yourself, Michael, especially when you're talking about topics which relate in some way to your academic background, is the exact opposite of hot or crushworthy. Hate to tell you.

Not that I'm implying that you would want me to have a crush on you or that this should be the goal of anyone's posts. Just saying. There's a difference in style and respect that comes across when some people post about their areas of knowledge that makes me admire them and want to understand what they know. When you post, I roll my eyes and make a quick exit from the thread. I end up ignoring the topic because I don't enjoy being condescended to or seeing other people condescended to. It completely corrodes my ability or desire to pay attention to the actual issue under discussion, at least, in this venue.

Here's a thought: If it's "not worth it," if posting your ideas/knowledge is just such a painful process for you, then don't.
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Postby Sonikku13 » Tue Mar 23, 2010 9:11 am

http://en.m.wikipedia.org/wiki/Patient_ ... e_Care_Act

That is the bill, for people who want to know.

America has had better reactive care; we were number 1 in overall responsiveness. Why do Americans have worse health statistics than Japan then? It is because the government forks the cost to working class American citizens. Suze Orman, a financial advisor on CNBC, says this, "People first, then money, then things." Your life is your #1 asset, it comes before money. This means to promote the general welfare of the US, we need health care, which will protect this valuable asset called life.

The bill will cut 138B from our deficit in the first decade and 1.2T in the second decade. Economically, a short term loss, but a long term gain.
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Postby Syphon the Sun » Tue Mar 23, 2010 10:33 am

Listen, if you want to engage in any particular discussion, you need the requisite knowledge on that topic. And when your legal analysis overturns hundreds of years of precedent, it's pretty clear you don't have that knowledge. It's also pretty clear that you don't have the desire to obtain that knowledge prior to entering the discussion. These aren't hot-off-the-presses decisions. These aren't decisions that are hard to find and their reasoning isn't intricate or complicated.

I'm not trying to be a dick. I'm not saying that I'm right because I happen to have more knowledge regarding constitutional law. I'm not saying that he cannot obtain that knowledge. (In fact, I'm saying the opposite: it's so easy to obtain, it's unbelievable he refused to obtain it prior to discussing the issue.) All I'm saying is that it is not really worth it for me to talk about it if the other party is unwilling to give me the courtesy of researching the topic prior to engaging in the discussion.

The Court has specifically rejected the "general welfare" argument numerous times. The Court has specifically limited the "necessary and proper" clause authority to those laws which are necessary to fulfill enumerated powers. The Court has never extended the commerce clause this outrageously far. These aren't tricky doctrines to understand; they're the basic doctrines you would uncover after even the most cursory of research on the particular clauses in question.

Would you really feel a discussion regarding psychology is worthwhile if the other party thinks psychology is nothing more than, say, phrenology? That's why I don't think it's worth it. And that's why I've been posting less and less on political and legal issues. So, yeah, I'm sorry it's not "hot" to insist that some kind of knowledge on the topic should be a prerequisite to taking part in that discussion. I'm sorry that I have no patience for people who are too lazy to even look up a few wikipedia articles or run a google search before chiming in, let alone do real research on the issue.

ETA -- More re: "necessary and proper" from the recent U.S. v. Comstock oral argument:
JUSTICE SCALIA: General Kagan, you are relying on the Necessary and Proper Clause, right? But necessary and proper doesn’t mean it is necessary and proper for the good of society. It means it is necessary and proper for the execution of another power that the Federal Government is given by the Constitution.
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Postby Gravity Defier » Tue Mar 23, 2010 1:11 pm

It is completely insane that if you are working, and you get very sick, and you need health care, and you can't work while sick, and they fire you, that you also lose your health insurance and thus you are essentially sentenced to death.

It is also insane that if you get some disease, fight it, and survive it, then change jobs, get a new health provider, and your disease relapses, that they can refuse to treat it because it is "preexisting".

I admit I know little about the bill that passed, but I hope this bill fixed these glaring health insurance s***-stains.
The pre-existing condition thing is banned starting in 2014 for adults; effective pretty much immediately (6 months) for children.

http://docs.house.gov/energycommerce/IM ... ISIONS.pdf

More here:
http://docs.house.gov/energycommerce/TIMELINE.pdf

There are some really good things being done in theory; I hold out hope for the practice.


ETA: Syphon, friend of forever, take this with a happy pill: you tend to approach these discussions as though you're being attacked, instead of an opportunity to share (correct misunderstandings, if you think we're wrong) something you've obviously passionate about. Talk to us, not down to us. As near as I can remember, you started with the hostility in this thread...you or buckshot.

ETA2: Adam started it, actually. Bad, Adam.
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Postby Syphon the Sun » Tue Mar 23, 2010 3:31 pm

Syphon, friend of forever, take this with a happy pill: you tend to approach these discussions as though you're being attacked, instead of an opportunity to share (correct misunderstandings, if you think we're wrong) something you've obviously passionate about. Talk to us, not down to us. As near as I can remember, you started with the hostility in this thread...you or buckshot.
I'm really not trying to be terribly abrasive. I'll admit that there's some hostility in there, of course, which isn't so much the fault of you guys as I'm just really frustrated with the ignorance in general regarding this particular bill, it's provisions, or how it fits with our regulatory and legal framework. Again, not the ignorance of people here in particular, but generally, since I'm coming into more and more contact with it as EIC.

So when somebody tries to call me out ("You're forgetting this, Syphon!") with particular arguments that aren't simply wrong, but so wrong that even the most hasty attempts at research would reveal the glaring conflict with hundreds of years of jurisprudence, it doesn't make me want to take them seriously. And it certainly doesn't make me want to spend the time necessary to explain in excruciating detail how and why they're so off-base.

Why would I want to spend time doing that if I'm not even offered the general courtesy of the person having read even a wikipedia article or two? It's sort of like coming into an argument about why Samwise is the greatest Star Wars character. I don't mind if somebody isn't an expert; I'm no expert. I just expect that, if you're going to actually discuss something, you have some kind of background knowledge beforehand. I'm taking the time to research the issues and, for any worthwhile discussion, you should, too. And when it's so glaringly obvious that they haven't, it's more than a little frustrating.

I have a lot of opinions on health care reform. I think insurance should be sold across state lines to improve competition, for example. I don't think pre-existing conditions should be a total bar to access, either. I think we should place limits on non-economic damage recovery for medical malpractice cases (i.e. amounts unrelated to medical expenses, lost wages, etc.). I think there are a lot of things that can and should be done at the national level and even more at the state level. I even think this bill has some good provisions. I think this bill has some terrible provisions, as well, though. And, most importantly to me, I think this bill has some unconstitutional provisions. But why would I want to take the time to explain those opinions to people who refuse to research the underlying issues and only follow through with their knee-jerk reactions?
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Postby Gravity Defier » Tue Mar 23, 2010 5:27 pm

I even think this bill has some good provisions. I think this bill has some terrible provisions, as well, though. And, most importantly to me, I think this bill has some unconstitutional provisions.
I appreciate the tone of this much more than your first post; I'm not trying to be condescending, it just makes you more approachable to hear this versus your first post and the ones thereafter.

So, if you have the time, I would most sincerely like to hear your opinion on all of the above quoted. What do you think is good? What do you think is bad/harmful? What parts are actually unconstitutional? If, on that last one, it is easier to point me in the right direction online, please do so. If you'd rather not, I understand, and thank you either way. :)
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Postby Game Room Wannabe » Tue Mar 23, 2010 5:49 pm

It is completely insane that if you are working, and you get very sick, and you need health care, and you can't work while sick, and they fire you, that you also lose your health insurance and thus you are essentially sentenced to death.

It is also insane that if you get some disease, fight it, and survive it, then change jobs, get a new health provider, and your disease relapses, that they can refuse to treat it because it is "preexisting".

I admit I know little about the bill that passed, but I hope this bill fixed these glaring health insurance s***-stains.
The pre-existing condition thing is banned starting in 2014 for adults; effective pretty much immediately (6 months) for children.

http://docs.house.gov/energycommerce/IM ... ISIONS.pdf

More here:
http://docs.house.gov/energycommerce/TIMELINE.pdf

There are some really good things being done in theory; I hold out hope for the practice.


ETA: Syphon, friend of forever, take this with a happy pill: you tend to approach these discussions as though you're being attacked, instead of an opportunity to share (correct misunderstandings, if you think we're wrong) something you've obviously passionate about. Talk to us, not down to us. As near as I can remember, you started with the hostility in this thread...you or buckshot.

ETA2: Adam started it, actually. Bad, Adam.
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Postby Yebra » Tue Mar 23, 2010 6:00 pm

http://tpmmuckraker.talkingpointsmemo.c ... reform.php

This seems a pretty concise sum-up of the basic issue, but they're all over the place if people want to google.

My nasty foreign two-cents is that while the mandate constitutionality issue seems to not be without merit, plenty of people who have more cents and legal know-how than me think it's plenty constitutional so it's hardly clear-cut and starting the thread by accusing these people who voted for a law (that is likely to reduce a huge amount of unnecessary human misery) of bad faith and betraying their oath... well that just isn't that nice and doesn't set a good tone for reasonable discussion. Also yo momma.
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Postby Game Room Wannabe » Tue Mar 23, 2010 7:22 pm

Can we back off that then? Or no?

It seems like a topic where the only endings are "the lawyers are stupid", "I hate the oath", and possibly "GO LAWYERS!!"
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Postby Sonikku13 » Tue Mar 23, 2010 7:46 pm

Scary GOP Poll

67% of Republicans say Obama is a socialist, 57% say he's a Muslim, and 24% say he may be the Antichrist. Wait a minute, I thought the Civil Rights Act of 1964 banned discrimination based on sex, religion, color, and national origin. Something smells fishy here, and I smell bias.

Now back on topic, Article I, Section 8, Clause 3, the Commerce Clause, allows Congress to regulate interstate commerce, among other things. Health insurance crosses state borders. A health insurance company, for example, WellPoint, is headquartered in Indiana. Yet it provides health insurance to multiple states, such as California, Georgia, New York, etc. This shows a crossing of interstate borders, and Congress can regulate that. The Elastic Clause enables the passing of universal health care to regulate insurance companies due to "general welfare" and the Commerce Clause.

The Commerce Clause also enables Congress to regulate marijuana, as stated by the Supreme Court in Gonzales v. Raich, even if it hasn't been bought or sold, even if it hasn't crossed state borders, and even if it hasn't had an effect on the national market. That can, in a strict interpretation of the Constitution, be deemed unconstitutional. This means there are alternate ways to interpret law, not one way is right, even if precedents say it's right.

I'll spin off on a tangent. The US is eventually going to pass the Anti-Counterfeiting Trade Agreement, due to the lobbying of the Recording Industry Association of America. At first glance, it seems fine, a international agreement to enforce intellectual property rights. But further depth reveals the possibility of border searches for "pirated" content. The first objection comes from encryption, as it would be hard, if not impossible, for an outsider to determine if an iPod has pirated material. The second objection comes from human nature, because some unscrupulous customs officer can take your iPod and not give it back because of the possibility of pirated material, just because that so-called officer wants an iPod for free. Is it right for someone to take your private property just because he wants it? The Fourth Amendment in the Bill of Rights, in theory, should protect against this, but in practice, it could happen due to human nature.
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Postby Syphon the Sun » Tue Mar 23, 2010 7:49 pm

I'll go into more detail soon-ish, both about what I like about the bill and why I think it is unconstitutional (but why it wouldn't be struck down as a whole -- though certain portions may be -- even without a severability clause).

That said, I don't think it's particularly outlandish to suggest that the people who swore to pass this thing by any means and even disregarded the Congressional Research Service's (Congress' own personal think-tank) memo declaring this as an unprecedented reaching of the commerce clause power without a firm constitutional foundation were breaching their duty to the American people. Their own think-tank told them this. Scholars of constitutional law and the commerce clause in particular told them this. And they ignored it. They lied about it, insisting strong support and a near-unanimous consensus from constitutional scholars that didn't exist. They even went so far as to pretend those who felt it was unconstitutional supported the measure as a constitutional exercise of power.

What's more, of those constitutional scholars who do support it, very, very few make persuasive legal arguments. They rely on precedent almost exclusively created in the late 1930s and early 1940s, during a period where the government was granted more authority than any point in history before or since that time. (Keep in mind that this was the same Supreme Court that authorized the federal government to detain Japanese-Americans and Italian-Americans without due process of law.) But then they completely ignore the controlling authority (both pre-New Deal and post-New Deal) which curbed such outrageous conduct. They completely ignore the actual language, intent, and original meaning of the Constitution, a bold move when four of the nine justices are originalists to at least some significant degree. And, mostly when they make the "it's constitutional" argument, they're just saying that they think Justice Kennedy wouldn't vote to strike it down, particularly if it gains more popular support. In short: they're doing exactly what they're insisting Yoo did with the torture memos: constructing shoddy legal support around an already-decided legal conclusion. Oddly enough, many of these scholars are those who have been bemoaning expansion of the government's power under the PATRIOT Act.
Last edited by Syphon the Sun on Tue Mar 23, 2010 7:57 pm, edited 1 time in total.
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Postby Game Room Wannabe » Tue Mar 23, 2010 7:53 pm

Bias, eh? Why don't we just go throw out some of the biasing stuff in this country? Racists, terrorists, The History Channel... (We can't... GRR :evil:)

Yeah, it is disturbing :shock:
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Postby Syphon the Sun » Tue Mar 23, 2010 8:38 pm

Sonic:

1. The interstate commerce argument sort of fails when the current state of the law actually prohibits the selling of health insurance across state lines. Corporate headquarters are irrelevant to that analysis, of course; heck, an outrageous number of corporations are based in Delaware, primarily so they can have access to stronger corporate protections. The analysis involves whether the goods or services are sold or exchanged across state lines; they are not. While a corporate headquartered in Delaware may be licensed to sell policies in multiple states, the commerce isn’t actually “interstate” because an Illinois policy may not be sold in New Jersey because the Illinois plan does not conform to New Jersey’s insurance regulations.

2. Even if it were interstate commerce, that would grant Congress only the authority to regulate the insurance companies, not require residents to engage in specific economic activities or face a penalty for non-activity.

3. I’ve already discussed the Necessary and Proper clause. Without a specific enumerated power to hang its hat, the N&P clause does not come into play.

4. Raich is the outlier of modern jurisprudence (the farthest the Court has ever authorized under the Commerce Clause, in fact) and even it does not go so far as to permit the health care legislation. Even under the Raich analysis, there is still a class of activity being regulated (the production of a fungible commodity), not non-activity. To uphold this legislation, the Court would have to conclude that the decision to not enter into a contract to purchase goods or service is itself an economic activity and that such activity substantially affects the large-scale interchange of goods or services across state lines. To conclude that noneconomic inactivity is fair game, the Supreme Court would have to essentially conclude the Commerce Clause has no limitation, something it has specifically rejected three times in the past fifteen years and is unlikely to overturn.
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Postby Game Room Wannabe » Tue Mar 23, 2010 8:50 pm

The penalty is irrational. Less people insured, more money for the government. :roll:
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Postby locke » Wed Mar 24, 2010 3:36 am

I think its constitutional, primarily because the constitution is flexible at adapting to the times, if it can adapt for income tax, social security, medicare etc it can adapt for a mandate&fee structure for health insurance. It would be more constitutional if we'd just had single payer, but with the rules of the Senate that just wasn't possible, sadly. Syphon's the only person on the whole internet with a respectable and specific argument about how it is unconstitutional. when most of the argument laid out elsewhere against its unconstitutionality is about the intent of the beloved founders explicitly wanting health insurance to cover grandma but not cover abortion or mexicans, it's hard to take the argument seriously. but it'll be interesting which way Justice Kennedy swings. If he's still on the bench by the time this get to trial.

Five thirty eight had an article today about the constitutionality.

http://www.fivethirtyeight.com/2010/03/ ... atory.html
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Postby Syphon the Sun » Wed Mar 24, 2010 6:02 am

The Constitution "adapts" through the amendment process. Income taxation was unconstitutional until it "adapted" through that exact process in 1913.
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ETA: FiveThirtyEight should stick to numbers. You know it's going to be a terrible article when it starts off with "I haven't even read the Constitution, but..."
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Postby locke » Thu Mar 25, 2010 2:21 am

the Constitution adapts through Judicial Review as well. I tend to not listen much to Scalia, reading his opinions tended to make my blood boil.

In any event, agreed that the five thirty eight article was not the greatest, but I found another one, this time by a Yale law professor, so it is slightly better though still an appeal to authority on my part. He points out that the penalty is structured as part of your income tax, and you get out of paying that part of your income tax by satisfying the conditions laid out in the tax code (demonstrating adequate health insurance).
http://balkin.blogspot.com/2010/01/appa ... -read.html
The House bill is a tax on adjusted gross income. You pay the tax if you don't purchase health insurance. Put another way, if you don't want to buy health insurance you can just pay the tax.

The Senate bill is a penalty tax. If you don't want to purchase health insurance, you pay the tax. The penalty is assessed for as long as you don't buy insurance. Such taxes are quite common-- think, for example, about the penalties imposed for failing to pay your income tax on time, or a tax on polluters who fail to purchase and install anti-pollution equipment. The Senate bill can also be classified as an excise tax on an event-- failure to pay premiums in a given month.

Now let's look at the Senate Bill:

‘‘CHAPTER 48—MAINTENANCE OF MINIMUM ESSENTIAL COVERAGE
‘‘Sec. 5000A. Requirement to maintain minimum essential coverage.
‘‘SEC. 5000A. REQUIREMENT TO MAINTAIN MINIMUM ES21
SENTIAL COVERAGE.
‘‘(a) REQUIREMENT TO MAINTAIN MINIMUM ESSENTIAL COVERAGE.—An applicable individual shall for each month beginning after 2013 ensure that the individual,and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month.
‘‘(b) SHARED RESPONSIBILITY PAYMENT.—
‘‘(1) IN GENERAL.—If an applicable individual fails to meet the requirement of subsection (a) for 1 or more months during any calendar year beginning after 2013, then, except as provided in subsection (d), there is hereby imposed a penalty with
respect to the individual in the amount determined under subsection (c).
‘‘(2) INCLUSION WITH RETURN.—Any penalty imposed by this section with respect to any month shall be included with a taxpayer’s return under chapter 1 for the taxable year which includes such month.
‘‘(3) PAYMENT OF PENALTY.—If an individual with respect to whom a penalty is imposed by this section for any month—
‘‘(A) is a dependent (as defined in section 152) of another taxpayer for the other taxpayer’s taxable year including such month, such other taxpayer shall be liable for such penalty, or
‘‘(B) files a joint return for the taxable year including such month, such individual and the spouse of such individual shall be jointly liable for such penalty.
‘‘(c) AMOUNT OF PENALTY.—
‘‘(1) IN GENERAL.—The penalty determined under this subsection for any month with respect to any individual is an amount equal to 1/12 of the applicable dollar amount for the calendar year.
‘‘(2) DOLLAR LIMITATION.—The amount of the penalty imposed by this section on any taxpayer for any taxable year with respect to all individuals for whom the taxpayer is liable under subsection (b)(3) shall not exceed an amount equal to 300 percent the
applicable dollar amount (determined without regard to paragraph (3)(C)) for the calendar year with or within which the taxable year ends.
‘‘(3) APPLICABLE DOLLAR AMOUNT.—For purposes of paragraph (1)—
‘‘(A) IN GENERAL.—Except as provided in subparagraphs (B) and (C), the applicable dollar amount is $750.
‘‘(B) PHASE IN.—The applicable dollar amount is $95 for 2014 and $350 for 2015.
and this is my perspective, but purchasing health insurance could be seen to make you eligible for a health insurance penalty deduction from your income tax. That sounds less than onerous, we give tax deductions for first time home buyers bought a house via a private transaction and tax deductions for people who pay mortgage interest to a private company in the form of a bank. I have to pay HIGHER income taxes to give those homeowning fuckers a bigger tax deduction for their choice to buy property. my higher income taxes could be seen as a penalty I pay for not meeting the requirements for the deduction.


http://www.washingtonpost.com/wp-srv/sp ... id=topnews
handy Health care calculator, I will not get any subsidies based on my income this year. I really hope my 2014 income is a lot higher, but I'm glad I don't have to worry about the mandate until 2014.

Health Care Reform 101

Why this is a MODERATE plan, bipartisan, even


Syphon, You also may well prefer what the CBO had to say in 1994, which I think is interesting, but also a little inaccurate (really just Selective service? what about income tax?)
CBO 1994
AN INDIVIDUAL MANDATE WOULD BE UNPRECEDENTED

A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States. An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government.

Federal mandates typically apply to people as parties to economic transactions, rather than as members of society. For example, the section of the Americans with Disabilities Act that requires restaurants to make their facilities accessible to persons with disabilities applies to people who own restaurants. The Federal Labor Standards Act prohibits employers from paying less than the federal minimum wage. This prohibition pertains to individuals who employ others. Federal environmental statutes and regulations that require firms to meet pollution control standards and use specific technologies apply to companies that engage in specific lines of business or use particular production processes. Federal mandates that apply to individuals as members of society are extremely rare. One example is the requirement that draft-age men register with the Selective Service System. The Congressional Budget Office (CBO) is not aware of any others imposed by current federal law.
And finally a chart everyone should see:


Image
So, Lone Star, now you see that evil will always triumph because good is dumb.

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Postby Satya » Thu Mar 25, 2010 7:26 am

What the... f*** does the chart have to do with anything?

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Postby Syphon the Sun » Thu Mar 25, 2010 8:42 am

Believe it or not, the power to tax is not infinite and Professor Balkin knows that. The tax examples he gives are specious, something he was probably aware of when he gave them.

For example, a penalty for failing to install anti-pollution equipment can only be upheld because there is commercial activity involved. Congress can mandate a factory install this kind of equipment because the factory is engaged in a commercial activity. Congress cannot, however, mandate that I install anti-pollution equipment in my personal home.

I enjoy the fact that Professor Balkin continues to ignore the fact that the Supreme Court has consistently held that Congress cannot, through a tax, regulate activity that it would otherwise be unable to regulate. It can encourage behavior, through rebates, tax cuts, etc., but it cannot force it. Congress can encourage you to buy a home by giving you a tax cut; it cannot mandate that you buy a home or face a penalty.

Jack Balkin has to know that, even if his specialty is the First Amendment, not the Commerce Clause. Georgetown professor Randy Barnett (who is a Commerce Clause scholar) and George Mason professor Ilya Somin both have a lot of in-depth articles on this topic, appearing pretty much everywhere online.

ETA: And you're totally free to ignore Scalia, but his views happen to be shared by Thomas, Alito, and Roberts. And, if US v. Lopez and US v. Morrison are any indication, his views on commerce clause authority is shared by Kennedy as well.
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Postby locke » Thu Mar 25, 2010 5:31 pm

What the... f*** does the chart have to do with anything?
not really health care related, but since there's so much talk about the deficit, I thought it was somewhat relevant.

And it illustrates that Starting a two front war and cutting taxes are a nasty nightmare of stupidity. Thanks Bush. Your stupid tax cuts helped along the financial collapse (imo, tax cuts cause recessions, and cutting taxes never stimulates growth, plus bush DOUBLING the national debt in 10 years left the government with dangerously low flexibility to deal with a downturn as severe as we're experiencing), your stupid tax cuts squandered our surplus, and your stupid unnecessary, my-penis-is-bigger-than-your-penis wars made the whole situation worse. :-p
So, Lone Star, now you see that evil will always triumph because good is dumb.

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Postby Syphon the Sun » Thu Mar 25, 2010 6:03 pm

imo, tax cuts cause recessions, and cutting taxes never stimulates growth
The U.S. Department of the Treasury's Office of Tax Analysis pointedly disagrees. Their analysis of the Bush tax cuts concluded that they "increased employment and output substantially above what would have occurred otherwise." In particular, they found that without the tax cuts, the GDP would be approximately 4% lower and the economy would have created 3 million fewer jobs by 2004.

Tax receipts and total revenue continued to climb under the Bush tax cuts (with total growth around 35% between 2003 and 2006 -- 6.8% higher than the growth at the height of the tech bubble, 1997-2000).

The problem wasn't that the tax cuts weren't creating jobs or stimulating the economy, which thereby increase federal revenue. The problem was that federal spending increases (including the creation of the largest new government program since the 1960s) rose far faster than receipt increases.
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Postby Syphon the Sun » Fri Mar 26, 2010 4:22 pm

Syphon, You also may well prefer what the CBO had to say in 1994, which I think is interesting, but also a little inaccurate (really just Selective service? what about income tax?)
I'm not sure why you think their report is "inaccurate." Is it because they do not include income tax as an example?

If so, your understanding of federal tax law is simply flawed, which leads to the confusion you're having, I think. You are not required to file a federal tax return as a condition of residency. You're only required to file a federal income tax return under specific conditions. For example, if you had no taxes withheld, do not qualify for certain tax credits, did not earn above a certain amount, did not sell any property, and do not owe any special taxes (e.g. those related to an IRA), etc., you do not need to file a return. Basically, you only need to file a return if you engage in certain activities, like earning income.

Perhaps a better example would have been the Census, which permits a fine of up to $100 for refusing or willfully neglecting to fill out the census or answer the questions asked by their agents.

Of course, for both selective service registration and the census, there is an enumerated power that allows for the application of the N&P clause. In the case of the census, it's Art. I, § 2, cl. 3. In the case of selective service registration, it's Art. I, § 8, cl. 12.

More later.
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Postby Yebra » Fri Mar 26, 2010 5:47 pm

Goddamn it Syphon stop being all knowledgeable. I either have to go research to remember exactly why I think different or change my worldview AND EITHER OF THESE IS HARD WORK FOR A FRIDAY.
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Postby Syphon the Sun » Sat Mar 27, 2010 1:43 pm

Okay, I've got a little free time, so I thought I'd come back and, per Alea's request, explain a little more about my reaction to the bill, noting something that I both like and dislike (which are actually part of the same provisions).

Pre-Existing Conditions
On a personal level, I don't think people should be forced into having no coverage because of a pre-existing condition. However, and I know I'm going to get a lot of flak for this, I'm not a fan of requiring insurance companies to cover them.

It's the same as forcing property insurers to provide coastal residents with hurricane coverage or residents along the Mississippi River with flood coverage if they want to sell insurance to anyone. Or requiring issuers of life insurance to provide new coverage to the terminally ill. You're mandating that all risks are acceptable and that premiums be unrelated to those risks. It's absurd to think that, should my father and I both apply for new policies, we should be charged the same premium, despite the fact that I haven't gone to the doctor in years and he has an appointment every few months for his diabetes. That's akin to charging me the same auto premium as somebody who gets in an accident every other month.

That's not to say I think they should be denied coverage. I just don't think mandating private insurers grant coverage is the way to go. I think that state-specific high-risk pools for those individuals who cannot obtain insurance because of a pre-existing condition is a good idea. It's hard to imagine setting up an efficient national pool, as insurance regulations vary so significantly among the states, but state pools already exist and, with additional funding, would probably work well.

So I think the provisions granting funding to states' high-risk pools is a step in the right direction. Unfortunately, that funding is expected to run out by next year and be entirely phased out by 2014, whereupon private insurers would be forced to cover high-risk individuals.


I'll be adding more (slowly and piecemeal) as the days/weeks go on. I'm swamped trying to juggle my normal academic load with my work load at the office and the transition into my new position for the journal. But more will come... eventually.
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