Obamacare and Frivolous Return Penalties

[.]

You might want to worry a lot - especially around the time that you'd be expecting the bill for my time for all that legal research I'd be doing out there

Nah. I've spent 250K+ on a lawyer more than once. Unfortunate, but it got good results. I'm now immune to billing-sticker-shock.



Fortunately, the biggest legal issue in my life is whatever the SC does this summer.

[rogfulton]

OK. Good one. I formulated the proposition inartfully. Let's put it this way: OTHER than what is already provided for in the Constitution (Article I, Section 8, clause 16,) is there any circumstance under which the federal government can require the purchase of anything by anyone.

That remains the question.

This just in, Congress requires purchase of insurance ... in 1790

In fact, the challengers’ claim is completely false. In 1790, the very first Congress (which included 20 framers of the Constitution, in case Justices Thomas and Scalia are counting), enacted a law requiring shipowners to buy medical insurance for seamen. The law was signed by another notable framer: President George Washington. Congress followed this with a 1792 law requiring all able-bodied citizens to buy a firearm (previously mentioned on this board), and a 1798 law requiring seamen to buy hospital insurance for themselves. Today, there are a host of affirmative federal duties to buy things. For example, federal law requires corporations to hire independent auditors, and requires unions to buy insurance bonds in case their officers engage in fraud. The list goes on.

In all these cases (other than the firearms case), one could say the federal duty was imposed on persons who are already engaged in some commerce. But that is also true of everyone subject to the health-insurance mandate, because all of us buy or sell something. And yet in each case, Congress required people to enter into commerce in a different market than the one in which they voluntarily operate, which is precisely what the health-care law’s challengers claim makes this mandate “unprecedented.”

[Arthur Rubin]

OK. Good one. I formulated the proposition inartfully. Let's put it this way: OTHER than what is already provided for in the Constitution (Article I, Section 8, clause 16,) is there any circumstance under which the federal government can require the purchase of anything by anyone.

That remains the question.

This just in, Congress requires purchase of insurance ... in 1790

In fact, the challengers’ claim is completely false. In 1790, the very first Congress (which included 20 framers of the Constitution, in case Justices Thomas and Scalia are counting), enacted a law requiring shipowners to buy medical insurance for seamen. The law was signed by another notable framer: President George Washington. Congress followed this with a 1792 law requiring all able-bodied citizens to buy a firearm (previously mentioned on this board), and a 1798 law requiring seamen to buy hospital insurance for themselves. Today, there are a host of affirmative federal duties to buy things. For example, federal law requires corporations to hire independent auditors, and requires unions to buy insurance bonds in case their officers engage in fraud. The list goes on.

OK, let's look at these examples:
1790: Admiralty law, and a mandate relating to the employer-employee relationship. I don't think that there is any doubt today that a law mandating employers to provide health coverage to employees would be found Constitutional, under the Commerce clause. Also before the 9th Amendement was ratified.
1792: Specific Constitutional mandate, as noted before
1798: Admiralty law. (May also fall under the "navagatable waterways" clause, which also has been expanded beyond recognition by Congress and the courts.) After the 9th Amendment was ratified, but before modern interpretation. Also, before Marbury v. Madison.
Corporations: Now, that one is close, as corporations are chartered under state law, and this is a Federal law. Still, no one is required to run a corporation.
Unions: No. Unions are exempted from anti-trust laws. That exemption is a Federal status, which can logically require conditions. Even if the law was not written in that manner, the courts could easily construe the law to read that if a union does not have insurance bonds, then it is not exempt from anti-trust law (and is undoutably in violation).

I don't buy it, and I suspect the Court wouldn't, either, unless they want to.

Added red text.

[Cpt Banjo]

While there are affirmative duties to buy things, they are all based upon the existence of some other activity (e.g., having employees) or on a special status (e.g., being a corporation).

The closest example that doesn't involve either is the 1792 Militia Act, which indeed required persons to supply their own firearms and other equipment. But this bit of history provides extremely weak support for the individual mandate: (a) the statute specified no penalty for one's failure to supply himself; (b) the constitutionality of the act was never considered by the Supreme Court (note that the statute was passed 9 years before Marbury v. Madison); and (c) just 6 years after the Militia Act Congress passed the Sedition Act, which was clearly unconstitutional by today's standards.