#HCR - why those conservatives blathering on about unconstitutionality are wrong

[thestickywicket]

Never got to this when I wrote my first, ranty post, but here are my thoughts on the various arguments that healthcare reform (as signed into law today, OMG!) is unconstitutional.

Comments

[thestickywicket]

Welcome! ;)

one of the reasons (many) I am and have always been so strongly in favor of a national single-payer system is the anticipation of the compelled purchase argument.

Oh, I agree, and I definitely favor single-payer, on its merits, and on the grounds that it's clearly Constitutional for the government to tax citizens "for the general Welfare." In fact, while arguing (a lot) with the office conservative today, I stumbled across some interesting and relevant quotes from the New Deal-era challenges to expanded government power (based on Commerce/Tax & Spend clause):

The constitutional issue about the taxing power had deep roots running all the way back to the founders and to a dispute between Alexander Hamilton and James Madison. Although both Hamilton and Madison were Federalists who believed in a strong federal government, they disagreed over the interpretation of the Constitution's permission for the government to levy taxes and spend money to "provide for the general welfare." Hamilton thought this meant that government could levy new taxes and undertake new spending if doing so improved the general welfare in a broad sense. Madison thought the federal government could only expend money for purposes specifically enumerated in the Constitution….

Justice Cardozo wrote the opinions in Helvering vs. Davis and Steward Machine.... [and] he made clear the Court's view on the scope of the government's spending authority: "There have been statesman in our history who have stood for other views. . .We will not resurrect the contest. It is now settled by decision. The conception of the spending power advocated by Hamilton . . .has prevailed over that of Madison..."

Pretty fantastic language in support of single-payer, and in support of the current buy-insurance-or-pay-tax-penalty framework. Unless the Roberts Court can muster 5 votes to reverse 70+ years of precedent, I think even the newly passed framework will be held constitutional.