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17Dec/107

Individual Mandates Among Us

Reading the National Review's gleeful acceptance of Judge Hudson's strike against the individual mandate (as opposed to the silence over his acceptance of the rest of the law), I can't help but wonder why the debate over the mandate keeps coming back to a comparison of the provision to buy auto insurance if you drive. Why not compare it to the laws on the books that lock up homeless folks for not purchasing (or bartering, or whatever) a residence? It would seem to me that if you want to suggest that government cannot infringe on one's right to do nothing, then the comparison to not procure a residence would be far more fitting.

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  1. Is there a Federal law that requires the homeless to be locked up?

  2. Of course not … all of the federal examples that warrant the expansive view of the commerce clause are already ruled valid. And as the earlier post pointed out, that includes opinions written by Scalia when it came to laws he just doesn’t approve of.

    And that’s really the broader point: an interpretation of the constitution will not be a factor in ruling on the individual mandate. Politics will.

  3. Gonzales was Scalia following precedent – Wickard v Filburn, an idiotic interpretation but it is the law. Neither address mandating someone to purchase something. I think this part of the law will fail in the courts.

  4. Come on, homeless people have dozens of things they can do to avoid being locked up. I bet the huge majority of the homeless have never violated a loitering law or whatever else applies and been locked up.

    But what option does someone have to not get insurance if the law is “you must have insurance”? This is no similar law: “you must own or rent a house or have a house someone lets you use.”

  5. Gonzales was indeed precedent, but the logic Scalia used will be logic he contradicts when the SCOTUS gets their case. I agree that the mandate will be ruled against, but it will be an entirely political decision.

    JJ, i’d be stunned if every homeless person were rounded up (conviently for tourist events) in accordance w private property or public safety law. The point is that they are often penalized by law for not having procured a residence of some form.

  6. Greg — I am sorry you have such a poor view of HPD. I think you should talk to some cops who spend a lot of time dealing, very humanely, with homeless people. I am sure there are some bad cops, but perhaps you should chat with your buddy Bill White about whether HPD during his six years behaved as you believe they generally have (i.e., violating their rights). I think Bill will cause you to be “stunned”.

    My point was that that homeless have to do something else in addition to not having a place to sleep. An insurance-less person would not. So, while interesting, I don’t think your analogy holds up.

    I do, however, agree that Scalia is almost completely results-oriented in his decisions, using whatever he needs to get where he wants to end up. Except once, didn’t he allow flag-burning as free speech?

  7. Way to miss the entire point and whip up a strawman, JJ. If you care to opine that I have a poor view of HPD, at least try offering a direct quote. False characterizations aren’t quotes.

    To reiterate the central point of this, we do pass laws locally that essentially penalize people for not procuring a residence (note: there is no judgment of “humaneness” involved). It is an example of a penalty caused by inability/inaction in commerce (ie – not buying something).

    If you would like to fully defend the laws against this, then please explain why the homeless are more actively locked up during Super Bowls and other big tourist events. It is an example of the arbitrariness of the execution of those laws, not a judgment of the “humaneness” of it all.

    I have pointed out over several posts that I believe the individual mandate is clearly constitutional. I disagree with it as a matter of politics and policy, but it is constitutional. So it’s not like I’m making the point that locking up homeless folks is completely out of bounds. If anything, it’s a supporting argument for them.


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