If the Republican'ts want to complain about the buy offs of Nelson and Landrieu, point out that by filibustering the bill THEY made it necessary.

If the Republican'ts want to complain about the 1:00 am votes, point out that THEY made it necessary by forcing the full waiting periods between votes.

If the Republican'ts want to complain that they don't know what is in the bill, tell them they ought to sit in the chamber when the clerks are reading it to them.

And remember, the living will "death panel" was a Republican't amendment too.

The summary is that you can look at the individual mandate as a tax

But Obama promised not to raise taxes - of any kind, not one dime - for anyone making less that 250K/year.

The auto insurance analogy is mostly apt, except insurance is mandated by the states and many states allow you to post a big cash bond if you don't want to have to buy insurance from some company or other.

The memories of the party of no will be filled with eight years of glistening yea's . This will frame their contribution to the destruction of a rational view of anything aside from their contempt . The party of no's rubber stamp , which was the very definition of those eight years , viewed the Constitution as an amusing contemptible joke . Anything that impeded the nascent party of no's lust and greed was effectively stampeded into silence . Now they refuse to be silenced , but like a gangrenous limb , no a gangrenous limb , off to the incinerator .

Funny how no one is targeting the selfish jerk-off senator whose vote had to be "bought" in the 1st place.....

I agree, though, that if the Repubs hadn't refused to participate, vote-buying wouldn't have been necessary.

What a farce.

Eddie,
But Obama promised not to raise taxes - of any kind, not one dime - for anyone making less that 250K/year.

OK, you're 25 and healthy, but you're forced to pay for health insurance; a tax, by your definition. You're also ignoring the fact that you receive a benefit for that payment: health insurance. Now you're 26, and diagnosed with polyps, which is likely to develop into colon cancer. You need period scans and treatments for the rest of your life (dang those pre-existing conditions if you change your job/insurance!). Such costs run into the tens of thousands. Is it now a tax credit for you?

This also serves to highlight how INCOMPETENT the Democrats have been and continue to be. Instead of actually capitalizing on "death panels" and making clear to the public that we do indeed now have -- and will continue to have -- insurance company death panels that "come between you and your doctor," they spent the summer getting the vapors over the incivility of the teabaggers.

A mandate for Americans to pay premiums to for-profit companies is unprecedented, and it only took the Republicans a short amount of time to capitalize on something "the fringe" of the Democratic Party has voiced concern about.

Yeah, keep pointing and laughing at the Republicans, because they are making hay out of the Democrats "plan."

Snowe is such a perfect example of a Broder-friendly "bipartisan" Republican- completely phony and dishonest.

The issue is not whether they are going to win or lose the constitutional argument. They will lose. The issue is whether they are going to attract independent voters with the argument. Unless the Democrats take the issue on squarely (with real arguments as well as sound bites) they will lose at least some independent voters. Not good for the next election.

The point here is not just to highlight the bizarre inconsistencies of Republican opponents of health care reform.

The inconsistencies were the result of the Republicans spending all summer throwing everything + the kitchen sink to see what would stick, so as sink healthcare and hand Democrats electoral defeat. Nothing really did, because the party of "no" is intellectually bankrupt.

Now they look across the aisle and are given ideas by an angry left who's pissed off at mandates and lack of adequate cost controls. Finally, they have the wedge they've been searching for all year. The party of duh and dumber, just got some help from the party of reality. Yay.

Republicans are not interested in the needs and issues of the American people. They are merely using their opposition to everything as a pathway back to power! Hollow men - the lot of 'em!

If Americans follow, Mr. T's question becomes relevant: "Who the fool, fool?" -Kevo

The issue is not whether they are going to win or lose the constitutional argument. They will lose.

The Supreme Court is stacked with Republican yahoos. They'll win the Constitutional argument on any pretext at all.

They could say it's unconstitutional because it makes daisies ungrammatical and they'd win.

Politicians are inconsistent about a lot of things, mostly because of politics. I suspect that there are not very many constitutional scholars in Congress and, in spite of your cites (which cherry picked scholars that agreed with the author), there is no concensus about this issue on the academic side either.

In fact there is rarely consensus in any constitutional issue amongst scholars with the possible exception of Brown v. Board of Education. You can always find a prominent scholar who disagrees. The only way to test the issue is to have the courts decide, which is one of the reasons the courts exist in our system.

A resolution such as the one the Republicans offered is nothing but fluff and politics to be referred to during the next election rounds if it is advantageous. Its passage was never in question. Resolution if this constitutional issue, assuming someone has standing and the courts accept it, will take a very long time, well past the next election.

More interesting are provisions in the Senate bill that prohibit future amendments unless there is a supermajority vote to do so. On pages 1019-1021, the bill requires a three-fifths vote in order to alter or repeal recommendations made by the Independent Medicare Advisory Board. I suspect that such language will not survive reconciliation since the Senate is telling the House what to do, but there is a lot in this bill that may be suspect to some.

If the constitutionality question does go to court the most likely result is that it would be declared constitutional. But that is certainly not a slam dunk and it may turn out to be a political problem when the medical police arrest some dying child's parents because they failed to pay the mandate due to religious objections.

Sausage making at its best.

Noting the hypocRisy is good, but as for the substantive issue: I wonder if requiring to do something, period, is the same as regulating how it happens *if* it's entered into. What really bothers me are special privileges like Nelson got for Nebraska. I've heard that A14 talk of "equal protection" may be a problem, if some citizens get Federal benefits etc. differently than others.

Here's the difference. There's no opt out except for death or giving up citizenship. Now that's true of taxes too, BUT (and it's a big but) taxes are paid to government (run by The People) the Mandate requires your money to be paid to The Private Insurance Companies (who btw are monopoly exempt.)

I don't know if the individual mandate is constitutional or not; however, forcing individuals to contract with a private corporation as a condition of their existence is certainly bringing us into unchartered territory. It's not just a tax - it's a provision forcing people into contractual arrangements. I think if the bill had a public option, this wouldn't even be an issue; the tax argument would hold water then. But, since we're talking about private corporations, it's a different issue. Similarly, the Commerce Clause has never been construed in such a way either, at least as far as I'm aware.

The analogies you draw - to the minimum wage, etc - are inapt to say the least. The worst is the comparison to car insurance. Driving is a privilege, not a right, so you're comparing apples and oranges. The Tim Noah piece spends a lot of time on this red herring. (He writes that he's not a lawyer....as if that wasn't obvious anyway).

It's also distinguishable from minimum wage law, in that minimum wage does not mandate individuals to enter into a contract, but rather sets the minimum amount of remuneration an employer can offer. It has nothing to do with the bargaining process between the individual and the employer. Rather, it's a federal regulation imposed on the employer.

Anyway, interested in other thoughts on the subject.

Did you know that when you start driving they do not fine you for all the years you did not drive and did not have insurance?
That is no analogy.

The only similarity is with what was done to seniors in the medicare part d plan.
Give your monthly payment, starting right this minute, to an insurance company or we will fine you for every month you delay.
Now seniors pay a monthly fee in order to be able to pay a copay so that they can buy their overpriced drugs.
If the drugs are covered.
If there don't need too many and hit the doughnut hole where they pay for drug insurance benefits they do not receive.

Medicare Part D will likely be the dread model for this sorry mess of an insurance bill.

Your analogies are absurd.
Individuals homes are not mandated to have ramps. Hello? Not public.
Auto insurance is not mandatory. It is perfectly legal to ride in a car without it. Shocking innit.
Minimum wage? Srsly. You think individuals pay their babysitter minimum wage?

Making an argument would be welcome. But these analogies are pure foolishness.

I would like to hear the constitutionality argument. I just wish the peeps who make it would make an honest argument instead of this list of supposed same situations that are not at all the same.

Shorter artsmith "Hey Eddie, it's okay that Obama stood in front of the American people and told a damnable bald-faced lie. I mean, I'm getting mine. Nevermind the empty suit in the corner. Just hit the hopenchange bong again and go with it!"

Eddie, you're right but Benen, Klien and the others are too intellectually disingenuous to address that point. Easier to cruise TPM or DailyKos and regurgitate some bullshit analysis. Good job Steve. Merry Christmas.

It is a discriminatory tax and thus it may be found to be unconstitutional. Commerce clause is inapplicable.

Well, I think it's unconstitutional because it's not a tax, it's a requirement to purchase.

Dean also changed his tune, in the face of no new information.

Politicians do what politicians do.

All the Democratic outreach and compromise options in the world can't overcome the fundamental lack of seriousness that comes with a party that opposes and supports the same idea at the same time.

To be fair, but not excessively fair, that party is opposing and supporting the same idea at slightly different times. It makes duplicity a little easier.

Steve, it isn't hard to understand.

The proposed mandate for individuals to purchase health insurance is NOT similar to auto insurance.

You can always opt out by choosing not to drive.

How would you opt out of health insurance under the Senate bill's mandate?

The federal government mandating a financial transaction, without an opt out, between private actors, is likely unconstitutional.

everyone keeps pointing out the shortcomings of the analogies used to show the mandate is constitutional, but that seems to be skipping a step. i have yet to see a commenter who thinks the mandate is unconstitutional say what provision it violates. remember that the unelected judiciary starts from a presumption of the constitutionality of the acts of the legislature.

Zeitgeist - correct, the judiciary starts with the presumption of constitutionality. Its opponents would argue it violates the Due Process Clause of the 14th Amendment. I've seen some argue that it violates the Takings Clause, but that argument is unlikely to succeed because no real or intangible property interest is implicated.

I've heard arguments on both sides that sound reasonable. On the one hand, one can analogize to cases upholding federal regulatory power and argue it is consistent with them; on the other, never before has the government mandated that individual citizens enter into contracts with private corporations. On that score, it's distinguishable.

There really isn't any precedent for the mandate, which, of course, doesn't mean it's unconstitutional by implication. It'll be interesting to see how it unfolds. I think there's a 50-50 chance a federal court could hold it unconstitutional.

Ask those Republic-ists if they would mandate that every woman has to carry every pregnancy to term.

How many would vote for that "mandate"?

never before has the government mandated that individual citizens enter into contracts with private corporations.

I think you're wrong there--it happens all the time in the context of regulated industries. If you're an airlijne, you ahve to ahve your planse mantained by liscenced mechanics

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