Article One: Section 9 of the US Constitution

[ixion]

I posted this as a response to someone about the constitutionality of the mandate. Since I spent some time digging around for it, I thought I would pass it on. :)

No bill of attainder or ex post facto Law shall be passed.

A bill of attainder is a law by which a person is immediately convicted without trial.

http://en.wikipedia.org/wiki/Article_One_of_the_United_States_Constitution#Section_9:_Limits_on_Congress


Mandating that we purchase a product or pay a fine is, in essence, a bill of attainder.


Also, there is an arugment to be made with this:

No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.

A "capitation" is defined as:


–noun
1. a numbering or assessing by the head.
2. a poll tax.
3. a fee or payment of a uniform amount for each person.


The mandate is distinctly a capitation, and therefore unconstitutional.

[NJmaverick]

1. A fine example of Holiday Inn Express lawyering

[ixion]

3. coming from you...

that means nothing. :hi:

[NJmaverick]

4. Yes I deal in facts and we have seen what you think of those pesky things

Funny how constitutional scholars, lawyers and judges all missed this.:eyes:


Edit to add- Maybe you should spend your time trying to HELP the nation instead of all your time trying to come up with ways to tear down the Democratic Party and their President.

[ixion]

5. hmmm... I post quotes from the US Constitution, you respond with your typical snark

and yet you're the one dealing in fact?

:rofl:

It hasn't been missed, simply ignored as the corrupt always do.

"If it's illegal we do it immediatley. It it's unconstitutional, it takes a while longer."

-- Henry Kissenger

[NJmaverick]

11. Sigh, you want the facts? Here you go

<<George Clarke, a partner in the tax practice at Miller & Chevalier, wrote in a recent essay for BNA's Daily Tax Report that the excise tax would not likely qualify as a bill of attainder because "the intent of the tax appears to be to affect citizens' behavior prospectively in a way the government finds desirable (arguably a nonpunitive legislative goal), rather than to punish members of the citizenry for their choosing to remain uninsured.">>

http://www.tax.com/taxcom/features.nsf/Articles/1A096E99F74042BC8525766D005D5147?OpenDocument

[ixion]

18. *sigh* ... no, this is called an editorial

not a fact.

[NJmaverick]

30. No that's called a legal opinion by a lawyer, but you keep on deluding yourself

[ixion]

33. ah, so you admit it's an opinion piece... thanks, that's all I needed

[havocmom]

7. You deal in agenda PR and we all know it

By the day, hour, or post is the only unknown

[NJmaverick]

9. That sounds like a good description of your destructive agenda

shouldn't be throwing stones and all that.

[havocmom]

36. Ah, attack the person with the lack of tact to say what most think

So last administration! Just a slightly more refined method of saying "I know you are, but what am I?" A trick we have all seen one too many times here of late.

:rofl:

[NJmaverick]

44. yet it was such an appropriate response to your post

based on its content and level of maturity.

[havocmom]

50. LOL, more of same tactic

No workshops on diverse methods?

No, I am not the one posting a dozen times in just about any thread critical of HCR that isn't reform at all.

I am the one who won't be sssshhhhed by heavy handed attempts to intimidate dissent.

[ixion]

51. yeah!!

Speak Truth to Power! :applause: :woohoo:

[NJmaverick]

13. Oh an here, just to show you what a fool you made of yourself

http://www.tax.com/taxcom/features.nsf/Articles/1A096E99F74042BC8525766D005D5147?OpenDocument

Similarly, the charge (circulated mostly by bloggers) that a healthcare excise tax violates the constitutional ban on any targeted and punitive bill of attainder (article I, section 9, clause 3) is rejected even by some who have other constitutional problems with the Democrats' bill. George Clarke, a partner in the tax practice at Miller & Chevalier, wrote in a recent essay for BNA's Daily Tax Report that the excise tax would not likely qualify as a bill of attainder because "the intent of the tax appears to be to affect citizens' behavior prospectively in a way the government finds desirable (arguably a nonpunitive legislative goal), rather than to punish members of the citizenry for their choosing to remain uninsured."

[ixion]

34. spot on, havocmom

:applause:

[Matariki]

59. That was my thought at this person's posts in this thread too

kind of needs to work on their subtlety.

The constitutional question is a perfectly valid one - and people bringing it up shouldn't get knee-jerk ad hominem attacks.

[arcadian]

52. You have zero credibility on this board.

[NYC_SKP]

64. Look who's talkin'!!!

I mean, really...

Merry Christmas, nonetheless!

:toast:

[Xicano]

63. So the constitution is actually written in code?

:shrug:

[HysteryDiagnosis]

2. People who don't want health care... won't pay for it if they can...

shouldn't expect me to pay for their emergency room visits when their conditions go into the red. On another note, I think you are correct.

[dkf]

6. The mandate was put in at the request of the insurance companies.

Maybe they did this to fool them into supporting the bill?

[Obamanaut]

8. K & R nt

[NJmaverick]

15. You might want to read this

http://www.tax.com/taxcom/features.nsf/Articles/1A096E99F74042BC8525766D005D5147?OpenDocument


Similarly, the charge (circulated mostly by bloggers) that a healthcare excise tax violates the constitutional ban on any targeted and punitive bill of attainder (article I, section 9, clause 3) is rejected even by some who have other constitutional problems with the Democrats' bill. George Clarke, a partner in the tax practice at Miller & Chevalier, wrote in a recent essay for BNA's Daily Tax Report that the excise tax would not likely qualify as a bill of attainder because "the intent of the tax appears to be to affect citizens' behavior prospectively in a way the government finds desirable (arguably a nonpunitive legislative goal), rather than to punish members of the citizenry for their choosing to remain uninsured."

[ixion]

41. The last paragraph of your own article admits the matter is not settled, to wit:

The notion of a court challenge to an eventual healthcare reform law is alive and kicking. "The idea of any form of mandate involving any sort of consequences -- such as a penalty or fine for not purchasing insurance, even without any additional penalties or interest -- is what makes the mandate unconstitutional," Klukowski said. "If the federal government were to include only aspirational language, urging people to buy insurance, that's one thing. But if it is any sort of legislative command, then it exceeds the boundaries of the Constitution, and is therefore illegal."

[truedelphi]

66. There is sentiment from the Right Wing that the

Fact that Senator Nelson got a special deal for Nebraska in which the citizens of his state would have their MediCare paid for, that deal violates the Commerce clause or something.

Big problen I see is that if it went to the Supreme Court - thsoe people never rule against the Big Corporations, and they are always willing to twist whatever law they need to in order to arrive at a judgement that settles it on behalf of the Corporate World.

[JDPriestly]

54. What gives Congress the authority to require individuals to buy

a product from private companies? There are no enumerated powers giving that authority. As I see it, Congress has to use its tax and spend authority. But, while there is a tax penalty for not buying the insurance, there is no tax advantage to buying it.

Sure, the federal government can demand that you buy insurance or perform other acts in exchange for certain privileges such as driving a car or running a factory that emits fumes, but it cannot require you to pay a tax or perform an act just because you are alive.

Local and state governments are not so limited as to what they can do, but the Congress's powers are pretty much enumerated.

[unblock]

10. they'll do it via the income tax code, and it will be constitutional

you have a fair point if they do it outside the tax code.

but if they do it by giving a tax credit to those who buy their own health insurance and deny the credit to those who choose to go uninsured, then it's perfectly constitutional.

this year, there's a similar tax credit available for those who buy products to reduce heating/cooling loss from their house. it's essentially a fine on those who don't, works out the same way.

fundamentally, they're NOT requiring you to purchase a product -- their just taxing income. differentially, yes, but they're taxing income. so it's constitutional.

[JDPriestly]

55. I agree with you, unblock.

They could do this in a manner that is constitutional. I have not seen any language indicating that that is their plan, but then I have not been reading every word of all the bills and codes referred to in the proposed bills.

[MineralMan]

12. I'd point out all the other times you get fined for not doing something

but it's just not worth the trouble on Christmas day. Suffice it to say that everything you said has been tested in the courts and the arguments found wanting.

Postage stamps.

[NJmaverick]

17. Enjoy your Christmas I got this one MM

Similarly, the charge (circulated mostly by bloggers) that a healthcare excise tax violates the constitutional ban on any targeted and punitive bill of attainder (article I, section 9, clause 3) is rejected even by some who have other constitutional problems with the Democrats' bill. George Clarke, a partner in the tax practice at Miller & Chevalier, wrote in a recent essay for BNA's Daily Tax Report that the excise tax would not likely qualify as a bill of attainder because "the intent of the tax appears to be to affect citizens' behavior prospectively in a way the government finds desirable (arguably a nonpunitive legislative goal), rather than to punish members of the citizenry for their choosing to remain uninsured."

http://www.tax.com/taxcom/features.nsf/Articles/1A096E99F74042BC8525766D005D5147?OpenDocument

:hi:

[ixion]

22. well, no you don't

really... :hi:

[MineralMan]

62. Thanks!

[JDPriestly]

56. Give some examples of some fines placed on you by the federal government for just living

and not buying something from a private company. Usually, the fines are in conjunction with some positive action you take other than just being alive.

This health insurance extra tax is basically for just being alive. And what is more, it is a tax only on people who don't buy a product from a private company.

As for the lawyers counseling the president and Congress on this, they may be right. But then, remember the lawyers that wrote memos telling President Bush that torture was lawful. Lawyers' opinions are just that -- opinions. Courts issue decisions. Lawyers issue memos saying whatever they think their client wants to hear. And sometimes clients keep asking for opinions until they get the answer they want. (The fools!)

[Matariki]

61. pins dropping....

[NJmaverick]

14. For those that recced this idea

Similarly, the charge (circulated mostly by bloggers) that a healthcare excise tax violates the constitutional ban on any targeted and punitive bill of attainder (article I, section 9, clause 3) is rejected even by some who have other constitutional problems with the Democrats' bill. George Clarke, a partner in the tax practice at Miller & Chevalier, wrote in a recent essay for BNA's Daily Tax Report that the excise tax would not likely qualify as a bill of attainder because "the intent of the tax appears to be to affect citizens' behavior prospectively in a way the government finds desirable (arguably a nonpunitive legislative goal), rather than to punish members of the citizenry for their choosing to remain uninsured."

http://www.tax.com/taxcom/features.nsf/Articles/1A096E99F74042BC8525766D005D5147?OpenDocument

[ixion]

19. You've posted this editorial three times now

it is an editorial -- an opinion -- nothing more.


Oh, and it DOES NOT address the issue of capitation, which I find even more persuasive than the bill of attainder.

[NJmaverick]

32. You need to look up the terms "legal opinion" and "editorial" as you clearly

don't understand the difference

[ixion]

40. lol... once again, your snark fails you

this is an op/ed publishing by a for-profit domain, not an Amicus Brief, or an opinion handed down by a court.

Fair enough, the guy is a lawyer. That does not make him the Single Authority of Opinion on this matter.

http://en.wikipedia.org/wiki/Amicus_brief

[havocmom]

37. Ah, mystery solved.

Not by day or hour, but by post for that one? ;)

[NJmaverick]

43. Are you afraid you are being ripped off by the RNC?

[havocmom]

65. Which kindergarten did that one come from?

:rofl:

[napi21]

16. If that's the case, how, how can there be a mandate to pay

income tax, ss, medicare, etc?

[ixion]

20. none of the items you mention are purchases of a product from a private, for-profit company

that's the difference.

[AllentownJake]

29. Income Tax had an amendment to the constitution

and Medicare and Social Security are income taxes, next question.

[hfojvt]

21. seems to me you are wrong on both counts

going in reverse,

a capitation is not unconstitutional. Note the word UNLESS. Meaning that a capitation that IS in proportion to the census IS Constitutional. A per person or per household tax clearly qualifies as a tax in proportion to the census.

Second, nobody will be convicted without a trial any more than they are when they are issued a speeding ticket. They just have two options
1) pay the fine
or
2) goto court, lose your case, and then pay the fine

the same would apply if you were fined for not paying your income or property taxes.

edit - yes, I toned down on the snark. After all, I could be wrong too.

[ixion]

23. pay the fine, or pay the fine

how is that not conviction w/o trial?

:eyes:

[hfojvt]

57. because the trial option exists

even if most people will not bother to tilt at that windmill.

[ixion]

60. if everyone is considered guilty,

than the "option" is no such thing. Kangaroo court much? :eyes:

[The Straight Story]

24. Difference is though, we are not paying the government, we are paying private companies

If they raise taxes and your money all goes to the government to provide services, that is one thing.

To make you spend your own money to give to a corporation is different.

[winyanstaz]

25. K & R...good job...well done..thank you :)

[ixion]

28. thanks!

:toast:

[apocalypsehow]

26. My sister-in-law forwarded something like this yesteday. She got it off Free Republic. 'Nuff said.

:thumbsdown:

[NJmaverick]

35. Yeah sad to see so many right wing memes being pushed at DU

makes one sick

[AllentownJake]

39. I didn't know the constitution was suddenly Right Wing or Left Wing

Both of us seem to talk about it a lot and both of us seem to like some parts of it and are not so fond of others.

[NJmaverick]

42. Deliberately misinterpretation certainly has right or left wing motives

[AllentownJake]

45. Yes and I don't think that clause is the issue

4th and 10th amendment seem to be bigger issues.


I get no replies when I post that calling me an ignorant fool, so I'll assume no one has an answer to those questions.

[NJmaverick]

46. You might find this article of interest

http://www.tax.com/taxcom/features.nsf/Articles/1A096E99F74042BC8525766D005D5147?OpenDocument

[AllentownJake]

47. Translation it is going to the Supreme Court

Where it will be ruled upon by finer legal minds than us on DU.

[NJmaverick]

48. It may or may not make it that far. I am sure there will be politically motivated lawsuits

but the judges tend to frown on that sort of thing. Look how well the "Obama wasn't an American" lawsuits went.

[AllentownJake]

49. It is an unprecedented expansion of Federal Power

I have a pretty good feeling, the Court will want to make clear what powers congress has and doesn't have. This is a little different than Birth Certificate nonsense.

[Hippo_Tron]

68. Pretending the 16th amendment doesn't exist is generally something the right wing does

And the argument in the OP pretends the 16th amendment doesn't exist. Either that or the OP has never read the 16th amendment.

[AllentownJake]

27. I think the 10th amendment and the 4th amendment make better arguments

:shrug:

[ixion]

31. I agree there, too...

I had another poster in another thread ask me to make a constitutional argument, so to avoid any nitpicking, I chose to stick to only the Articles of the Constitution.

However, I think both the 4th and 10th amendments in the Bill of Rights pertain here as well:

Forced participation or commandeering

The Supreme Court rarely declares laws unconstitutional for violating the Tenth Amendment. In the modern era, the Court has only done so where the federal government compels the states to enforce federal statutes. In 1992, in New York v. United States, 505 U.S. 144 (1992), for only the second time in 55 years, the Supreme Court invalidated a portion of a federal law for violating the Tenth Amendment. The case challenged a portion of the Low-Level Radioactive Waste Policy Amendments Act of 1985. The act provided three incentives for states to comply with statutory obligations to provide for the disposal of low-level radioactive waste. The first two incentives were monetary. The third, which was challenged in the case, obliged states to take title to any waste within their borders that was not disposed of prior to January 1, 1996, and made each state liable for all damages directly related to the waste. The Court, in a 6–3 decision, ruled that the imposition of that obligation on the states violated the Tenth Amendment. Justice O’Connor wrote that the federal government can encourage the states to adopt certain regulations through the spending power (i.e., by attaching conditions to the receipt of federal funds, see South Dakota v. Dole), or through the commerce power (by directly pre-empting state law). However, Congress cannot directly compel states to enforce federal regulations. In 1997, the Court again ruled that the Brady Handgun Violence Prevention Act violated the Tenth Amendment (Printz v. United States, 521 U.S. 898 (1997)). The act required state and local law enforcement officials to conduct background checks on persons attempting to purchase handguns. Justice Scalia, writing for the majority, applied New York v. United States to show that the law violated the Tenth Amendment. Since the act “forced participation of the State’s executive in the actual administration of a federal program,” it was unconstitutional.

http://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_States_Constitution


A mandate is "forced partitcipation" by definition.

[AllentownJake]

38. My 10th amendment argument would be

That since Insurance Companies are state related corporations and they all have state subsidiaries they set up to operate in each state, that there is no interstate commerce to regulate. The only way this tax could fit the 10th amendment is if you can show an impact on interstate commerce

The 4th amendment is this can be determined to be an unreasonable seizure. People citing the examples of things like Auto Insurance fail to understand the auto insurance mandate for what it is. It is a condition of having a driver's license and registering an automobile for use on public roads, it is not a mandate as this plan is, as there is no living license. You can own an automobile and not have insurance, when I moved into an inner city 4 years ago for a time I garaged my car and canceled the insurance on it. I lost my plates for a time, but I still owned my car.

I do not see any precedence where private citizens have been required to purchase a product based on the simple fact they are breathing. All other examples of regulation and fining assume someone has agreed to conduct an activity, employing people, operating a power plant, owning a fire arm. This provision there is no actual choice involved. You are alive or you are not.

[JDPriestly]

53. Just two of a number of good reasons why the bill can only work

if everyone is taxed proportionately for health care and people who buy health care insurance are then given credits (including tax credits for people who cannot afford the insurance).

[Odin2005]

58. K&R

[amborin]

75. +10

[Hippo_Tron]

67. Sure that makes sense, if you completely ignore the 16th amendment

"The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration."

In other words, that second part of the constitution you quoted was completely invalidated by the 16th amendment. As for the first part, you obviously do not understand what a bill of attainder is.

[ixion]

72. my, how gloriously you support our Great Corporations

you should be so proud.

[Hippo_Tron]

74. So, I support our corproations because I tore your bogus constitutional argument to shreds?

:eyes:

[ixion]

76. uh, simply dismissing them is not "tearing them to shreds"

which you did, perhaps, in your own mind, but no further.

A mandate to purchase an over-priced, crappy quasi-product from a for-profit vertical market with a history of gaming said market is an unprecedented move that deserves serious examination, not out-of-hand dismissals.

[Hippo_Tron]

77. I refuted your arguments

One section of the constitution you quoted was invalidated by the 16th amendment. As for bill's of attainder, what they mean is that congress cannot convict anybody of a crime, that must be done through the courts. A mandate to purchase health insurance isn't convicting anybody of a crime without due process.

[amborin]

69. must read from "after downing street" :

snip

"CONGRESSIONAL BUDGET OFFICE, THE BUDGETARY TREATMENT OF AN INDIVIDUAL MANDATE TO BUY HEALTH INSURANCE, (1994) available at http://www.cbo.gov/ftpdocs/48xx/doc4816/doc38.pdf.

Unlike the states, Congress cannot enact any law even if doing so would foster public safety and health. Under our federal system of government, Congress can only enact laws that are of a type authorized by a provision of Article I of the Constitution, which sets forth the powers of Congress.

Proponents of the individual mandate typically cite the Commerce Clause of the Constitution as
granting Congress the authority to require individual Americans to purchase health insurance.

Article I, Section 8 of the Constitution grants Congress the power “o regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”

Therefore, in order for Congress to have the authority to require Americans to purchase health insurance, the purchase of health insurance must constitute “commerce” within the meaning of the Commerce Clause. It does not.

In 1982, the Supreme Court declared that, in order for a commodity to be considered an article in commerce, it must be capable of being sold. Sporhase v. Nebraska,
458 U.S. 941 at 949 -- 950 (1982).

While there is no doubt that the sale of health insurance by an insurer constitutes commerce, it does not follow that the purchase – or more precisely, the failure to purchase – health insurance by a consumer also constitutes commerce.

Health insurance, once purchased by a consumer, is not capable of being further sold in commerce because there is no market for it; who would purchase a health insurance policy naming someone else as the insured?

In order to understand the point better, it might be helpful to contrast health insurance with life insurance. Because paid-up life insurance has a cash value, an industry has developed in purchasing life insurance benefits from terminally ill patients.

Known as viatical settlement companies, they will pay a percentage of the value of an insurance policy to a terminally ill patient if the corporation is named as the beneficiary of the policy.

The patient gets the cash up front, to pay medical bills or
to support his family, and the corporation makes a profit on its investment when the insured dies. Because there is a market for life insurance benefits, the purchase of those benefits may be regulated under the Commerce Clause to make sure that the patient is not coerced by the Tony Soprano Benevolent Society to name it as beneficiary.

But there is no market for health insurance benefits once the policy is
issued. No one would buy my health insurance, because no one other than I
can derive any benefit from it.

Since there is no market, health
insurance is not an article of commerce once issued. If it is not an
article of commerce, Congress lacks authority under the Commerce Clause to
require me to purchase it."

snip

http://www.afterdowningstreet.org/node/48553

[ixion]

73. excellent post

thanks for sharing!

[earth mom]

70. The mandate is totally unconstitutional. Don't let the naysayers lie that it isn't. nt

[Waiting For Everyman]

71. It's forcing us to enter into private contracts, but coercion voids contracts.

If it's done because insurance is deemed to be a public good, then the public needs to pay for it, and administer it so that it's accountable to oversight.

Black letter contract law is as basic as it gets.

[amborin]

78. K&R n/t