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By Bart Jones

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Are Medical Insurance Mandates Constitutional?

Posted on Apr 4, 2008

Both Hillary Clinton and Barack Obama’s health-care plans contain some form of mandate—a requirement that Americans purchase insurance. At least one legal scholar wonders whether that’s constitutional. At the very least, Karl Manheim argues, it’s “certainly unprecedented.”

Karl Manheim in the L.A. 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.

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By Matthew - Promotional Products, January 5, 2012 at 7:08 pm Link to this comment

This is why some people have likened the health care reform as socialist. It is as if the government is forcing its citizens to buy insurance when clearly they should be given a right to choose. Is such an unconstitutional move needed just to make everyone have insurance coverage?

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By auto insurance discounters, June 29, 2011 at 10:37 am Link to this comment

i wonder now how Hilary’s health plan would have turned out.

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By Dermot Stafford, September 24, 2010 at 3:03 am Link to this comment

So long as citizens continue to demand from their government free emergency medical car and a continued healthy society while pursuing lifestyles that do anything but encourage good health the same government has a duty to impose upon the populace some form of medical system to balance these opposing needs and behaviors.

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By Dave in Big Pine, April 7, 2008 at 11:34 am Link to this comment

I give you mensa member as a perfect example. read any of “it’s” posts on this board and “self evident” is as lucid as it gets.

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By Dave in Big Pine, April 7, 2008 at 10:47 am Link to this comment

the trouble with all this is an illiterate populace that has consistantly shown a willingness to vote against it’s own interests and fall, repeatedly, for the propaganda that makes them do so. how on earth could a rational, intelligent, sophisticated, edified person NOT want universal, single payer health care? The answer: we dumb Americans, that’s who.  until we develop brains, that contain knowledge, we will continually fail as a society, continue to allow the elite to stick it to us, and we will never better our situation.

it is the willingness of the dumbed down population of America to just except things, that is the root of the problems we face. as long as we are more interested in American Idol, don’t know who won the civil war, can’t find Missouri on a map, or know that Europe is not a country, we have no chance. We will be used and abused, and we have no one to blame but ourselves.

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By Jaded Prole, April 7, 2008 at 7:14 am Link to this comment

Here in Virginia, as in other places, the purchase of automobile insurance is mandated, however, one has the choice of paying the state a fee as an “uninsured motorist. This does not provide coverage but it “insures” that you are covered from the charge of not being illegally uninsured.

Mandated insurance purchase is a ridiculous scam that feeds a rotten industry. If that’s what these candidates what to legislate, we should push for an option that gives public coverage, like Medicare, for a fee.

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By cyrena, April 6, 2008 at 5:09 pm Link to this comment


This government CANNOT BE SHAMED!! That’s been proven.

What I DO hope your post will accomplish, (and Michael Moore’s latest documentary does this exceptionally well) is to make more citizens aware of how shameful it is that that we’ve been failed by our own government, and INTENTIONALLY.

His film looks at the health systems in several other countries and exposes the myths that the US government, (the coroporate theives - same thing) use to keep us stupid or otherwise in the dark about their own intentions.

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By cyrena, April 6, 2008 at 5:04 pm Link to this comment

Thanks for this e-good. It IS something to consider.

I’ve actually NOT had to do without the primary and most needed ones, because I’ve had access to an alternative insurance plan, that covers them all at a $15.00 co-pay. So in reality, I’ve been paying the Part D premium, (for absolutely nothing) and the other premium (which is slightly more but covers ALL medical stuff that medicare does not).

Thing is, I’m now about to lose that other coverage, (at least for a while, while I’m on sabatical from my studies) and so that might leave me dependant on the Part D for the 2 meds that I can’t do without.

It was because I did have access to this other option, that I didn’t try to mess around with the Part D.

Now of course, I’m forced to consider all of these options.

Still, thanks for the suggestion, since I will now have to deal with that.

Have you ever thought that the BB (Bureaucratic Bitch) really is designed to just kill us off even sooner?

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By e good, April 6, 2008 at 6:09 am Link to this comment
(Unregistered commenter)

RE: Cyrena at 7:58
Why not STOP the payments for the Part D?  If you can’t afford the drugs and do without them because the plan gives almost no discount, you are getting absolutely NOTHING for your monthly $29 mandated payment.
So, even if you later want to opt back in to a drug plan, and the premiums “could” be higher than for others as a penalty (and this has only been threatened, there is no statement other than that medicare “might” penalize you in this way)-you still save that money now. 
(With your high drug costs you would probably be better off paying more per month and getting more of a deduction-probably should check this first, and if still not feasible, THEN consider dropping the plans altogether).
Others are doing this already, so it might come to a standstill with the gov at some point.

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By Expat, April 6, 2008 at 4:34 am Link to this comment

^ legal point (maybe); the “point” is largely missed.  To wit: None of this should be even a discussion; what possible justification can this government have for no health care for it’s citizens?  Rhetorical question; there is no excuse, none!  The U.S. is the largest economy/wealthiest country in the world and doesn’t take care of it’s most valuable resource; its citizens.

I live in an emerging third world country (S.E. Asia) and even as an expatriate I have wonderful healthcare for the princely sum of $13.71/month USD.  No co-pay, no charge for my high blood pressure medicine, no charge for my annual physical, which includes a full blood test (LDL-HDL-TriG-Kidney/Liver function), EKG etc.  In the event I need some serious diagnostics I can go to the capital city and get world class care.  For that I might have to pay; this is a case by case decision.  But even so it’s 10 times cheaper than in the west.

The point for my post is to shame the government and get some relevant information out there so people know they really do have some choices.  America is failing it’s citizens and it’s not an accident.  This is intended.

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By cyrena, April 5, 2008 at 8:58 pm Link to this comment

This is absolutely true e-good. The standard medicare premiums have tripled, and it was BEFORE Part D even kicked in!!

In other words, we were already paying for it at least a year before it was effective, just in the cost of the increased premiums for part B.

Then, part D came with additional ‘premiums’ of its own, requiring us to ‘sign on’ to a plan with premiums ranging anywhere from $27.00 to $119.00 per month. (we’re just talking drugs here now, nothing else covered).

Here’s the kicker, the higher the premium, the larger the ‘discount’. So, I signed up for the ‘least expensive’ premium, and off I went to the pharmacy to use this ‘new benefit’ for the very first time.

When my 3 prescriptions were ready, the bill totaled $438.00 dollars for a one-month supply of three medications, and that was AFTER my part D whopping ‘discount’ of $44.00 dollars had been applied. (premiums are $29.00) a month just for the drug coverage.

Needless to say, I had to tell the pharmacist to put the stuff back on his shelf, because I couldn’t afford it. And, I’ve not attempted to use this ‘benefit’ since, even though the $29.00 premium continues to be deducted from my SS retirement income, along with the premiums for Part B.

Is it constitutional? Probably not. It IS a rip-off though, and only big pharma is reaping any ‘benefits’.

Meantime, the one and only agency that is ‘allowed’ to purchase drugs at cost in bulk quantities (from Big Pharma) is the Veteran’s Administration.

No other public or private entity can negotiate for cheaper drug prices with the very same Big Pharma to whom we pay these premiums. (the premiums are set by Big Pharma and the Insurance Industry, the Feds/treasury just collects on behalf of them).

I call it a racket.

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By Paolo, April 5, 2008 at 7:20 pm Link to this comment

Actually, you have this only partly right. Indeed, as you point out, the Constitution has not been followed for some time. This is a fault with our masters in Washington, not a fault with the Constitution itself.

As a libertarian, I have several disagreements with the Constitution, but I nonetheless think it would be a fairly good way to govern a country—if anyone actually followed it.

A nation needs a rule book. As far as rule books go, the Constitution is good. To a large degree, the Constitution restricts the powers of the federal government. Unfortunately, politicians will always grab power when the people are not vigilant—which is almost all the time.

To say, however, that something is “ridiculous” because it was written hundreds of years ago, does not follow at all. Human beings have changed hardly a whit in that time. Technology has advanced greatly, but none of this advancement makes the Constitution obsolete.

It is true, as you say, that the ruling elite have the American people by the cajones, but not because they “shove the Constitution down our throats.” Rather, it is because the ruling elites ignore the Constitution with impunity. Unfortunately, the elites will not give up their ill-gained power without a fight, and that doesn’t mean an election. It will take an armed revolution, with the end result of many of those elites swinging from lamp-posts.

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By James, April 5, 2008 at 7:03 pm Link to this comment
(Unregistered commenter)

What about state mandated shots for children? The government mandates that I have a place to sleep at night in many places, doesn’t it? I can’t just release my bodily waste wherever I want… I must seek a restroom…

Also couldn’t the Government get around it by raising the tax rate for individuals who do not have insurance to a point where it will cost more for them to stay uninsured, removing certain tax write offs like child credits… Make it a requirement for attendance at any school that recieves public funding (Preschool to College), make it a requirement for anyone seeking federal student loans. Make it a requirement that doing business with the govt requires all employees be insured. If you want to import or export you shouldn’t be able to unless all your employees are insured. Heck if ya want… make it a requirement for the services of the post office, the use of federally funded highways, government grants and loans, or getting a passport.

I am rambling but why not mandate that all business require employees or person doing work to the benefit of the a business be required to have insurance. If you don’t like it… dont work… don’t own a business

It is easy to work your way around the system if you want.

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By bc41, April 5, 2008 at 5:49 pm Link to this comment

I think it is like eminent domain, which is now taking people’s property for the express purpose of allowing certain kinds of business to purchase it.  To many, it’s an economic squeeze to take on more bills.  You have a captive customer market.  What needs to be done is to get the costs down.  Take a cost breakdown of any typical illness billed and be honest for what and to who it pays.  Recently I read of a person arrested whom said he was having a heart attack.  The city estimated around $4,500 for 6 hours of emergency room.  Suppose you estimate how much time workers spent on the patient allowing a generous wage (I guessed generously the hours and 70k/yr and 200k/yr doc), throw in the cost of the arrest and labor still is less than a $1,000.  Where does the other go?  Consider that thousands of patients pay toward buildings, equipment and overhead, do so 24 hours a day.  I paid $30 a day for an apartment near a hospital that charges a $1,000 or more a day jsut for the cubical.  treatment story:

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By e good, April 5, 2008 at 3:10 pm Link to this comment
(Unregistered commenter)

Medicare Part D Drug Plan—this is a mandatory Federal plan—if you don’t pay your “dues” (which jumped triple each year so far) you get menacing letters, but no actual threat, except that they will cancel you and tell Medicare! And Medicare can then penalize you if you later wish to join a Drug plan (by charging you more!)
These plans are rip-offs, and will not pay for alternative medicine (bio-identical hormone replacement and compounded vitamin injections etc-)because Big Pharma does not make them.

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By sephoj, April 5, 2008 at 2:56 pm Link to this comment

BLOGGERS: Read my article on the HUFFINGTON POST that gives the rationale for MANDATES and offers a better healthcare plan than HILLARY and much better than the one given by BARACK. _b_91781.html

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By sephoj, April 5, 2008 at 2:52 pm Link to this comment

BLOGGERS: Read my article on the HUFFINGTON POST that gives the rationale for MANDATES and offers a better healthcare plane that HILLARY and much better than the one given by BARACK.

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By sephoj, April 5, 2008 at 2:46 pm Link to this comment
(Unregistered commenter)

Bloggers: Please read my article on the Huffington Post
and pass it around to others. IT GIVES THE RATIONALE FOR MANDATORY MANDATES, and offers a better healthcare system for the USA than that given by HILLARY and much better than one proposed by BARACK.

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By purplewolf, April 5, 2008 at 2:31 pm Link to this comment

JJ don’t wear support hose either-don’t need to

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By Peter, April 5, 2008 at 12:03 pm Link to this comment
(Unregistered commenter)

He addresses auto insurance in the article.  Next time read it before commenting on it.

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By amused onlooker, April 5, 2008 at 10:18 am Link to this comment
(Unregistered commenter)

you americans are so funny with your cult-like worship of your ‘constitution’, which by the way, hasn’t been really followed for quite some time now. 

wasn’t it written with the recognition that times would change, and thus it was made possible to make changes to the constitution as needed?

think of the world the founding fathers lived in, then look at the world we live in today.  seems ridiculous that anything written hundreds of years ago would be relevant today, doesn’t it?

america needs to wake up and realize that the ruling elite have the american people by the balls, continually shoving the constitution down your throats, while they rob you blind.

its the ultimate scam, and its too bad that only people on the outside of your crazy country can see it.  i really feel sorry for the common american.

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By Norman Cressy, April 5, 2008 at 8:51 am Link to this comment
(Unregistered commenter)
I ask all you bloogers to got to my published account of HEALTHCARE on the Huffington Post. I plead that my version of healthcare for the USA is better than Hillary’s and certainly better than Barack’s.

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By Leefeller, April 5, 2008 at 8:30 am Link to this comment

Our tattered constitution may only be history by the time the mandate is instituted. The rule of law is only for the populous not the elite, we will find that increasingly so as our new president will be more like the King we left behind in England.

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By jimmyjam, April 5, 2008 at 7:52 am Link to this comment

My bad mixed you with Purple Girl

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By jimmyjam, April 5, 2008 at 7:47 am Link to this comment

Your support hose must be to tight.

Massachusetts has become the first state to require universal health coverage, you will either get it from work, or be forced to purchase health coverage or take a tax dunnage. If too poor, the state steps in.
  “Businesses with more than 10 workers that do not provide insurance will be assessed up to $295 per employee per year. Individuals who can afford insurance but don’t have it are subject to state income tax penalties. And government subsidies will help poor families.”
  Additional coverage at the Healthcare for All website.

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By Jim Yell, April 5, 2008 at 7:40 am Link to this comment
(Unregistered commenter)

Health Insurance is necessary and universal health insurance can only be delivered by a government monopoly, run by the government. Private Insurance only is available if it offers high profits to investors and it can only do that if every effort is made to block its use.

Health Care is a Public Health Issue and should not be an occasion for price gouging and exclusion. Our over paid and compensated Congress has great health care for their sorry asses and the public is stressed by the double binds they are put into.

Privatize is a lie to cover piracy by cooporations and the greedy. Pharmacy Industry loads us with over priced medication, much of it more dangerous to use than the disease or using existing medication.

Look at the mess in Iraq caused by privatizing military action. Except for the over compensated and under over sight of private security firms, no one and definately not American citizens and tax payers are served.

Capitalism, yes but enforced rules and regulation or it turns into gangsterism. Religion and Corporations should not be in government. Bunch of crooks and liars.

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By Paolo, April 5, 2008 at 7:16 am Link to this comment

As a libertarian, I am always amused by cries that some thing or other is “constitutional” or “unconstitutional,” when no one (except Ron Paul and a few others) follows the Constitution at all!

Can the federal government compel people to buy its insurance? Actually, the Constitution does not allow the federal government to legislate in the area of health care, period. Health care is simply not one of Congress’ enumerated powers.

Speaking theoretically, a sovereign state could write such legislation. It would be a bad idea, but an individual state could do it. But the federal government has no such authority.

Take a good look at the enumerated powers in Article One, Section Eight of the Constitution. There is no authorization there for the federal government to go into the health care of health insurance businesses.

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By purplewolf, April 5, 2008 at 7:06 am Link to this comment

There is one state,I believe in the eastern coastal states, which made it the law that the people have to buy medical insurance. Those who do not, because they cannot afford to are made to pay a penalty to the government. Now that really is stupid of our government to further penalize the people. If you cannot afford the fees in the first place what good do these morons in office think will help by hurting the people more. If the government demands that the people pay for their medical, perhaps they should make it really affordable and reasonable benefit coverage and then help cover the cost for those who cannot afford the premiums.

America had no problem covering the cost of better medical coverage for people living in foreign countries, (who are NOT citizens of America for example,(revealed on 60 minutes and other news shows)take Germany for example, we cover maternity there, and pay the wages for 3 months after the birth of a child for the father-yes- and/or the mother, their job is left open to return to at same pay and position and all they pay for insurance for the whole family a month is 5 dollars. America does the rest. It amazes me what America pays for in other countries that it denies its very own citizens. If, and we do, it for others in foreign countries then we sure can do it here and at a reasonable cost.

By mandating everyone buy medical, pretty hard to do when you have no job, it is another attempt to make big corporations richer and Americans poorer. And in too many cases when you need your medical for anything, it will decide that your need is not a covered benefit, which happens to people I know all the time on such a large variety of ailments that you wonder just what they do cover for the over priced non service you pay for. And they won’t cover prescriptions unless the government makes them do so and this is a very large part of peoples medical expenses.

A bad idea, to much room for corruption.

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By Douglas Chalmers, April 5, 2008 at 7:03 am Link to this comment

Well, you pay Parts A,B,C,D even if some comes out of an income in Medicare taxes. That’s not free insurance and it is another issue altogether if/when you aren’t working.

What you are telling me is that Americans have a huge blind spot and it has to do with bullshit and bogeymen nonsense which they have bought about Iraq and every other country that their government has pointed a finger at for the past century or so since Spain and Cuba in the 1890’s and possibly China and Japan before that with that Commodore Perry freak and US gunboat diplomacy latterly based in the Philippines.

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By purplewolf, April 5, 2008 at 6:49 am Link to this comment

Realfish, it is the law in my state you have to have car insurance to “legally” drive. I work with the local crimewatch in my area and one of the police officers said, several years ago, that there are a lot more people out there drive with no insurance as they can not afford to pay for it.

I read the “underwriting” on my insurance bill and to make it short, they have figured out a way out of their responsibility to cover “any accident” you are billed for. I.E. if you are taking your child to a ball game and have a neighbor, or friends child along also for the event, you are not covered, if you are an artist(I do this for income) I pay for yet have no coverage even if I am not on the road for a show, if you use your car to make a living like deliver pizza, I did home care for years and if I had to drive a patient to the doctors, we are not covered, So you get to the point you ask yourself why am I paying for non existent coverage.

The health care industry is more of the same and in many cases more costly. I had Blue Cross/Blue Shield of Michigan and had good coverage, prescriptions included for a small co-pay. Once I became injured and unable to work I lost this coverage. I had no income for almost a year and any insurance company I called did not cover prescriptions(only through an employer) the coverage was far to expensive for the very limited coverage. Then they always are raising their rates and lowering your benefits so you end up with just about nothing and in many cases medical insurance cost more money that a working person earns(in Michigan anyway). So in the long run it is the person who needs medical insurance who is the loser in the long run.

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By Purple Girl, April 5, 2008 at 3:30 am Link to this comment

The “Gov’t” has some screwed up Priorities.
The only candidate Who has my Ear is Obama, but anything short of Universal health care for ALL is A major Contention. Et tu Barrack? Are the health insurance co so important we can’t get rid of them?
Is it the fear of being labeled ‘Socialist’, If that’s the criteria- call me a Socialist!
The Federal Gov’t has relatively little to handle. they have ‘Delegated’ all their responsiblities to Private Industries- Economy (Federal reserve & Gamblers of theStock market) Defense (Blackwater?)
Health Care (anyone else but them), and No doubt they will be sherking their responsiblity to Education Too.
WE Must Demand these EMPLOYEES take back the JOBS they were assigned when we Declared our Independence.
If they will not do them- then why are we Paying for Staff of the US Treasury, Dept of Health & Human Services…..It’s time to FIRE the INDEPENDENT CONTRACTORS who have Milked every last cent out of our ‘RESERVES’. somethings Must be handled by a Governing Body so as to avoid Conflicts of Interest to the Citizens of a Nation. Health care is a Major Area (effects education, defense & the economy)

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By mill, April 5, 2008 at 12:07 am Link to this comment

i teach in the human resource management area, and i had never heard of a private employer forcing an employee to purchase life or health coverage - those are options that employees overwhelmingly seek because they’re typically cheaper than shopping as an individual - but they don’t make you buy in (sometimes they do keep you out coercively)

got a reference or source?  i’d like to find out more about this

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By mill, April 5, 2008 at 12:02 am Link to this comment

what ever the program, it won’t be free. i suspect you know it, and just were a bit loose ...

.. but i do think it matters ....

maybe no additional charge at the time of services, maybe paid wholly by other taxpayers ... but it is an important point that the services are not free

... and given how much federal spending already exceeds current receipts ...our borrowing from foreign sources is huge and growing…. and given how really badly medicare, medicaid are underfunded going forward ...

i don’t see any politician talking seriously about how this all gets paid for. 

i appreciate the legal point about the feds forcing me to buy from some private provider ....

we SHOULD apply that rule to mercenaries doing the military’s work in war zones too. why should a US citizen working in Iraq have to buy mercs to do what our army can’t (namely provide security for everyone in a land our military occupies)

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By TheRealFish, April 4, 2008 at 10:41 pm Link to this comment

Auto insurance.

It is a crime to drive in most states (all?) if you are uninsured. You get tickets. You pay fines.

Now if those statutes are repealed on the grounds of unconstitutionality then, by due process, Manheim’s argument would have some slight credibility.

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By cyrena, April 4, 2008 at 10:08 pm Link to this comment

No, Pete…SS and Medicare are not unconstitutional in the context of the legal comparison here.

Actually, I was just thinking how well they made the clear distinction in this well written piece.

It should give us ALL something to consider. Most folks (especially those working the corporate plantations) have been MANDATED to purchase life and health insurance as a condition of employment. The employer, (the private sector) mandates not only that the slave employee purchase this life and health insurance as a condition of their employment, but they ALSO mandate that the employee/slave purchase it from the private sector entity that the employer selects.

THAT part of it has been successfully challenged, to allow for employees to purchase the same from other sources. BUT, most corporate slaves/employees aren’t even aware of that option.

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By Douglas Chalmers, April 4, 2008 at 9:47 pm Link to this comment

The real question is not regarding the word “mandate” but the term “purchase”. Why not just make a basic level of health insurance FREE for ALL citizens?

It works in other countries and those wanting a private room in a hospital or not to have to be on a waiting list for surgery can still buy additional insurance.

Will there be some rorting of the system by insurers and the medical community? Yes, inevitably, but it is more controllable than it is now. As it is, everyone is being suckered with the “user pays” mentality.

Make your government serve YOU!!!

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By Pete Nicely, April 4, 2008 at 7:37 pm Link to this comment
(Unregistered commenter)

Unconstitutional as well?

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