Individual Mandate - Redux

[Teallaura]

Source:


Three states have enacted individual mandates of their own since the Federal version ends in January.

I actually think this is a good thing - albeit not directly. It will almost certainly be contested - and that gives a chance (slim, yeah, I know) that it will return to the Court - hopefully with a saner outcome this time.

I fully realize it has the potential for some other far reaching effects - but I have never bought the idea that I should have to buy insurance to insure you unless I want the liability protection because I have assets to protect. That's what liability protection is actually for - to protect the insured's assets. It's not supposed to be a 'deep pocket' for the complainant. Since fault is rarely adjudicated anyway, I see no fairness at all in forcing poor people to pay for an utterly unnecessary rider. If you do have assets and want to protect them from uninsured drivers, pay for that rider - that's perfectly rational. But you pay for your own insurance - don't make other people pay to protect you.

Cue the liability horror stories...

[Terraceth]

Source:


Three states have enacted individual mandates of their own since the Federal version ends in January.

I actually think this is a good thing - albeit not directly. It will almost certainly be contested - and that gives a chance (slim, yeah, I know) that it will return to the Court - hopefully with a saner outcome this time.

Given that every justice who voted in favor of the individual mandate being constitutional remains on the court, I'm not sure why you think there would be any different outcome.

But let's set that aside. Even accepting that the individual mandate in Obamacare should have been ruled unconstitutional, that is a dramatically different issue than whether a state has the constitutional power to do so. The Tenth Amendment says the federal government has no powers beyond those stated in the constitution, but for states it's the inverse, that states have every power not prohibited to them by the constitution. To prove the individual mandate was constitutional, someone had to point to a place where the constitution gave the power for the federal government to do so (the commerce clause and taxing power were those appealed to), but no such requirement is necessary for a state doing the same thing.

In fact, as "if the individual mandate is unconstitutional, why can states require you to purchase things like automobile insurance?" was an argument sometimes brought, one can ironically find sites who contended the ACA's individual mandate was unconstitutional making the very argument I made above (in more depth), i.e. that while the federal government (according to them) didn't have the right to do is, there was no doubt that individual states could.

[Teallaura]

Given that every justice who voted in favor of the individual mandate being constitutional remains on the court, I'm not sure why you think there would be any different outcome.

But let's set that aside. Even accepting that the individual mandate in Obamacare should have been ruled unconstitutional, that is a dramatically different issue than whether a state has the constitutional power to do so. The Tenth Amendment says the federal government has no powers beyond those stated in the constitution, but for states it's the inverse, that states have every power not prohibited to them by the constitution. To prove the individual mandate was constitutional, someone had to point to a place where the constitution gave the power for the federal government to do so (the commerce clause and taxing power were those appealed to), but no such requirement is necessary for a state doing the same thing.

In fact, as "if the individual mandate is unconstitutional, why can states require you to purchase things like automobile insurance?" was an argument sometimes brought, one can ironically find sites who contended the ACA's individual mandate was unconstitutional making the very argument I made above (in more depth), i.e. that while the federal government (according to them) didn't have the right to do is, there was no doubt that individual states could.

I agree with you - they are different powers involved - but ...

As Courts age they 'mature' - Obamacare came up really early in Roberts tenure - while that doesn't mean that the Court would necessarily view it differently there are some reasons to think it might (narrow decision, narrow scope).

On the state side, I think the Court erred in not treating this as an interstate commerce matter - which it is. Now, that may simply have been because when the auto cases were coming up, it wasn't as clear that the ISC clause should govern. Of course, the Court might not think so - that's always possible.

But, it takes time to work a case back up to the Court's consideration - and there is a possibility that a more conservative Court - and a more mature one - might take a different tack.

And as I said to begin with at this point, it's a slim possibility at best - but ya gotta start somewhere.