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Legal Challenges to Mandatory Health Insurance Are Good for America and Progressives

10:25 am in Uncategorized by Consumer Watchdog

Death and taxes may be inevitable in life, but in politics what’s inevitable is that you will have to face public opinion and the Constitution. President Obama is rightfully having to confront both over the worst flip-flop of his presidency: his endorsement of mandatory health insurance purchases.

As the New York Times reports, courts are calling into question mandatory health insurance’s constitutionality.

The courts are right, and so was Obama when he opposed mandatory health insurance purchases on the campaign trail on the grounds that people want health insurance, they just cannot afford it.

Not only did the President betray a campaign pledge, he turned his back on public opinion — which runs 2 to 1 against mandatory health insurance purchases.

A federal judge in Florida has made clear the mandatory purchase law tests the limits of the federal government’s power. This is no right wing judicial conspiracy. Loyola Law school professor Carl Manheim and I, both of us progressives, made the same arguments in a Los Angeles Times oped two years ago when Obama, as a candidate, opposed mandatory health insurance purchases and Hillary Clinton supported it.

Our cautionary arguments then sound a lot like the preliminary thoughts of Roger Vinson of the Federal District Court in Pensacola, Fla now. Here’s what we wrote in the Los Angeles Times:

Are health insurance mandates constitutional? They are certainly unprecedented. The federal government does not ordinarily require Americans to purchase particular goods or services from private parties.

The closest we come is when government imposes a condition on the grant of a discretionary benefit or permit. For instance, in most states, you must have auto insurance to drive a car, or you are required to install fire sprinklers when building a new house. But in such cases, the "mandate" is discretionary — you don’t have to drive a car or build a house. Nor do you have a constitutional right to do so.

But Americans do have a constitutional right to live in the United States. Accordingly, neither federal nor state governments can require you to purchase health insurance as a "condition" for residency. The Supreme Court has drawn a distinction between requirements that are flat-out imposed by government and those imposed as a condition for discretionary benefits.

One Washington, DC "liberal" group Families USA, which has gotten quite chummy with the insurance companies and drug companies during the reform debate, sent out an email blasting the judicial assault on "reform." The truth is mandatory health insurance is the regressive, not progressive, part of the new federal health care law.

The progressive part of the law, squarely within the confines of the Constitution and supported by strong public opinion, are the reforms that rein in insurance company abuses and provide subsidies to the poor to get health coverage. Progressives should hope mandatory health insurance is voided by the courts because it makes the rest of health care reform much more palatable. Any coercive use of government to help a hated industry that is opposed by more than 60% of Americans is not progress.

The courts would be right to say the government went too far in requiring all Americans to buy mandatory health insurance too. As Carl Manheim and I wrote defending Obama’s principled stand against mandatory insurance in 2008:

In fact, under the law, there’s a big difference between participation in a government health program funded by taxes and privatizing such a program, with individuals forced to purchase private health insurance.

Taxation involves representation, which is the case when Congress appropriates money and controls a government program for the general welfare. This describes Social Security and Medicare. But government cannot simply delegate its taxing powers to private business.

What representation do we have in the insurance firms whose products we would be required to buy, at prices and terms they set? Can we vote out an insurer’s board of directors for denying claims or paying its CEO a multimillion-dollar salary? Here too the Supreme Court has drawn a distinction between taxes imposed by government and mandatory fees set by entities with private interests.

A health insurance mandate is essentially a forced contract, in which one party (the insurer) gets to set the terms. You must buy their policies, even if you prefer to self-insure, rely on alternative medicine or obtain treatment outside of the system. In constitutional terms, such mandates may constitute a violation of due process or a "taking of property."

Requiring Person A to give money to Person B is a "taking," whether or not something of value is given in return. Let’s say the state required every resident to buy milk, on the rationale that milk consumption benefits public health. That’s either a constitutionally forbidden taking (of money) or a violation of due process.

These constitutional rights aren’t absolute. Given a compelling enough reason, government can interfere with your person and property. It can require, for instance, that your child be vaccinated before attending public school. But there is usually an opt-out, such as private or home schooling. We are not aware of any opt-outs for most people in the mandatory health insurance plans being discussed.

For the White House and Democrats, embracing this inevitable truth should come sooner rather than later.


Posted by Jamie Court, author of The Progressive’s Guide to Raising Hell and President of Consumer Watchdog, a nonpartisan, nonprofit organization dedicated to providing an effective voice for taxpayers and consumers in an era when special interests dominate public discourse, government and politics. Visit us on Facebook and Twitter.

Obama’s Victory Lap In Rush Hour Gridlocks LA To Raise $1 Million For Congress

10:13 am in Uncategorized by Consumer Watchdog

Posted by Jamie Court, Consumer Watchdog President and author of The Progressive’s Guide to Raising Hell


It took my wife an hour and half to make the two mile commute home Monday, after the secret service closed some of LA’s busiest streets at rush hour to shuttle the president from his Beverly Hills hotel to a fundraiser for Congress hosted by the producer of West Wing.

As the White House tweeted about Potus meeting the Hollywood West Wingers, LA’s usually-snarled Westside traffic stood still. Moms and dads couldn’t get home. Child care providers raked in the after-hour penalties.

The liberals once flooded with hope had nothing but road rage for their inconsiderate president, as they tuned in their car radio to find he was keeping them from their families to raise big bucks for a Congress, which has an approval rating only slightly north of Al Qaeda.

The LA Times headline says it all: "Obama raises a quick million – and some LA commuters ire." "I was an Obama supporter, but … was stopped by police from crossing Olympic to get home … during my daily dog walk," Amy Christine said. "I’ve lost all belief in his judgment. Can he really think he’s more important than the tens of thousands of people trying to get home to their families?"

Cut to the clueless president at the home of John Wells, the West Wing creator: "What a spectacular evening. Let’s just hang out." The Westside gridlock was a mighty metaphor for the how narcissistic and out-of-touch this White House has grown when it comes to the priorities of the middle class. "We need jobs" signs were seen lining the president’s route.

Road rage will soon turn to political rage if Obama doesn’t shake up his west wing and start campaigning for working Americans rather than posing with Hollywood’s heavy weights.

Obama touted his green job and solar powered agenda Monday, but what middle America cares about is the high price of their gas, the low value of its wages and new government burdens backed by Obama, which will become all too clear as the post-Labor day campaign advertising machine cranks up.

Case in point the mandatory requirement that all Americans have to buy health insurance by 2014, but the failure of government to regulate health insurance premiums. In my new book, The Progessive’s Guide To Raising Hell: How To Win Grassroots Campaigns, Pass Ballot Box Laws And Get The Change We Voted For, I show how the Obama-backed mandate, a reversal of the president’s campaign pledge, is much like the mandatory auto insurance laws in the late 1980s that sparked voter revolts.

If you think road rage was bad in LA, wait til the middle class learns that, by 2014, it will face tax penalties if it doesn’t shell out big bucks to health insurance companies, whose public standing is in the same cellar as Congress’s. The ballot initiative process gave the public a chance to answer back on mandatory auto insurance in the late 80s, but politicians paid a big price for their obeisance to industry rather than the public.

Next stop for Potus is Seattle, where the insurance company lobbyists are railroading consumer advocates on the details of Obamacare at the National Association of Insurance Commissioners meeting. Congress and the president punted to this industry captive organization of insurance commissioners to make the rules of fairness in the health insurance market. Not surprisingly insurers are close to winning huge, unfair tax breaks for themselves, accounting tricks to count overheads as "medical care" in order to pump up the amount of profits they can collect, and other big concessions that will bite the middle class in the butt.

Obama’s not riding to the rescue of consumers in Seattle, but going to take another victory lap at rush hour. Let’s hope the president reads the Los Angeles Times this morning and alters his course, or at least his route.
Gridlock is one thing in Washington, but in this unending recession voters can only stand so much in their own back yard. Obama’s Los Angeles trip cost his party a lot more than it raised. It’s yet another sign that the real west wing needs to understand that Obama is not simply playing president on television and twitter, but representing an anxious and increasingly impatient nation that wants to get home and hopes for a president to lead it.