Virginia v. Sebelius
mmoskovitz at ggu.edu
Tue Dec 14 11:28:35 PST 2010
Yes, but isn't that like saying it's conditioned on being alive &
breathing? You need to earn income & breath to survive. Not quite the same
as driving a car on public roads & getting a govt-backed mortgage.
I'm not predicting the outcome in Supreme Court or saying I agree with Judge
Hudson. I'm saying only that this is not an easy or frivolous issue. It's
novel, unique, and new.
Congress can regulate production of asparagus to boost price of asparagus
(Wickard v. Filburn). To further this effort, can Congress compel every
American to buy 10 pounds of asparagus each year? If answer is no, how is
health insurance different?
*Professor of Law*
*Golden Gate** University School** of Law*
536 Mission St., San Francisco, California 94105
Phone: (510) 384-0354; FAX: (415)563-6872; *e-mail*: mmoskovitz at ggu.edu
On Tue, Dec 14, 2010 at 11:11 AM, Kermit Roosevelt
<krooseve at law.upenn.edu>wrote:
> Is it not fair to say that the imposition of the requirement is
> conditioned on earning income, since the penalty is an addition to tax due
> and can only be enforced via a refund deduction?
> Kermit Roosevelt
> Professor of Law
> University of Pennsylvania Law School
> 3400 Chestnut St.
> Philadelphia PA 19104
> On Dec 14, 2010, at 12:55 PM, "Myron Moskovitz" <mmoskovitz at ggu.edu>
> It's not that simple. Govt requires car insurance only as *condition *to
> driving, or home insurance as *condition* to getting govt.-backed loan.
> But I can't think of any case where federal govt has required people to buy
> something, not as a condition to exercise of some right or privilege.
> Myron Moskovitz
> *Professor of Law*
> *Golden Gate** University School** of Law*
> 536 Mission St., San Francisco, California 94105
> Phone: (510) 384-0354; FAX: (415)563-6872; *e-mail*: mmoskovitz at ggu.edu
> *website*: myronmoskovitz.com
> On Tue, Dec 14, 2010 at 9:25 AM, Steven Jamar <stevenjamar at gmail.com>wrote:
>> The government requires us to have car insurance. The government requires
>> us to have house insurance if we want government-backed house loans. The
>> government requires us to favor veterans when we hire.
>> Prof. Bernstein's question is specious.
>> This is a tax, plain and simple (though not quite so simple in form as an
>> income tax or a medicare tax or a social security tax or unemployment tax).
>> I have no problem with those who think it wrong as in infringement on
>> liberty as a matter of policy. But I do have a problem with transmuting a
>> simple tax and health policy into a constitutionally constrained liberty
>> How is the FDA constitutional? We all pay for it in the food prices we
>> pay, right? A tax on everyone. Oh. There are those who opt out and grow
>> all of their own food.
>> The real question is how will Kennedy vote? And my interest is in why
>> people think he will vote one way or the other and secondarily what theory
>> will be called upon to explain the decision to us all. This case will not
>> be decided on syllogistic application of law or even of policy -- it will be
>> decided as so many cases are on politics and on a vision of what is the role
>> of the court in protecting its version of liberty vs. equality.
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