[Azure]

Originally Posted by valo403

I'm no constitutional scholar, not my area of expertise and I've never claimed that it was. I have a solid understanding of the case law and the basics of the whole thing, but to be honest I haven't paid all that much attention to the details of this bill as I have a real job that involves entirely separate areas of law and it's been quite busy. You can see my previous post where I said that I don't claim that there is no possible argument against the constitutionality of the bill if you'd like, it was directed at you. Arguing against an argument that is simply a conclusion based on an inaccurate understanding of basic constitutional law (as doglover was making) doesn't mean I've deemed the bill 100% free of challenge.

What I will argue is that threats of lawsuits that fall on party lines are not an indication of unconstitutionality, and that the architect of this bill is highly versed in constitutional law. I'll defer to that for the time being, if you can direct me to the actual legal merits of the proposed challenges (not just the clauses) it would be helpful.

Not my analysis obviously, but here is an argument supporting the constitutionality. There are additional supporting articles linked at the bottom of the page. http://www.acslaw.org/node/15619

Sorry to keep editing, but this article (linked from the previous one) by Erwin Chemernisky, widely regarded as the go to guy for Con law issues is particularly on point to your question. http://www.politico.com/news/stories/1009/28620.html

I've read all that and can certainly appreciate where they're coming from. But he's so wrong. Healthcare insurance is NOT interstate commerce. It is by LAW not allowed to be INTERSTATE. Tort reform? Yeah, they choose not to go down that route, so how the hell can they use the interstate commerce clause to justify forcing people to buy health insurance?

As far as I'm concerned they're using the Commerce Clause to justify forcing people to buy healthcare insurance and it simply doesn't fly.

It doesn't fly because refraining from purchasing insurance is by definition not engaging in commerce and FedGov has no right to mandate a lack of commerce.

Otherwise, you have to float the stupid idea that merely being alive is somehow interstate commerce and then there would be no limit to the commerce clause and to Congress’s authority to regulate everything you(speaking to Americans) do, which clearly is not the intention of the clause.

I think you're all forgetting what this 'fine' actually is. It IS a tax on living. People are going to be punished for choosing not to do something.

Here is what Randy Barnett, a professor of constitutional law at Georgetown had to say about it.

Can Congress really require that every person purchase health insurance from a private company or face a penalty? The answer lies in the commerce clause of the Constitution, which grants Congress the power "to regulate commerce . . . among the several states." Historically, insurance contracts were not considered commerce, which referred to trade and carriage of merchandise. That's why insurance has traditionally been regulated by states. But the Supreme Court has long allowed Congress to regulate and prohibit all sorts of "economic" activities that are not, strictly speaking, commerce. The key is that those activities substantially affect interstate commerce, and that's how the court would probably view the regulation of health insurance.

But the individual mandate extends the commerce clause's power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company. Regulating the auto industry or paying "cash for clunkers" is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds.

If you choose to drive a car, then maybe you can be made to buy insurance against the possibility of inflicting harm on others. But making you buy insurance merely because you are alive is a claim of power from which many Americans instinctively shrink. Senate Republicans made this objection, and it was defeated on a party-line vote, but it will return.

http://www.washingtonpost.com/wp-dyn...031901470.html

In regards to the 10th amendment. From the same article.

Of course, there is one additional way for states to win a fight about the constitutionality of health-care legislation: Make it unconstitutional. Article V of the Constitution gives state legislatures the power to require Congress to convene a convention to propose an amendment to the Constitution. If two-thirds of state legislatures demand an amendment barring the federal regulation of health insurance or an individual mandate, Congress would be constitutionally bound to hold a convention. Something like this happened in 1933 when Congress proposed and two-thirds of the states ratified the 21st Amendment, removing from the Constitution the federal power to prohibit the manufacture, sale and transportation of alcohol. But the very threat of an amendment convention would probably induce Congress to repeal the bill.

I dare someone to make this a black and white issue. Because you have respected Georgetown Law professors saying its a VERY grey area, to the extent that the Supreme Court could force the Democrats to ratify it, and Erwin Chemernisky, another highly respected constitutional lawyer saying it is constitutional.