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Archive for Friday, April 2, 2010

Attorney General Six says Kansas will not challenge federal health care legislation

Kansas Attorney General Steve Six says it would be fiscally irresponsible to challenge health care reform because he thinks the case would fail.

April 2, 2010, 2:48 p.m. Updated April 2, 2010, 5:42 p.m.

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— Kansas’ attorney general said Friday he won’t join colleagues in other states in challenging the new federal health care law because he believes their lawsuit has little chance of success.

Democratic Attorney General Steve Six’s announcement drew immediate criticism. Many Republicans see the new law as an attack on individual liberties because it requires most Americans to buy health insurance starting in 2014. One legislator noted that Six was appointed by former Gov. Kathleen Sebelius, now U.S. secretary of health and human services.

The Republican-controlled Legislature still could order Six to challenge the law, and a resolution requiring a challenge has been introduced in the House. Also, Six’s decision is likely to be an issue as he runs for election this year.

But Six said the U.S. Constitution gives the federal government broad powers to regulate interstate commerce. He also dismissed arguments that the law is unconstitutional because of its changes in Medicaid. Finally, he said, there’s no need for Kansas to challenge the law because other states already are.

“Our review did not reveal any constitutional defects, and thus it would not be legally or fiscally responsible to pursue this litigation,” Six said in a statement. “I will continue to make decisions based on the law, not in response to political pressure.”

Thirteen states, led by Florida, filed a federal lawsuit moments after President Barack Obama signed the health care legislation into law last month. The states claim the health insurance mandate is unconstitutional and the Medicaid changes violate states’ sovereignty.

Virginia has filed its own suit, attacking the federal law over the health insurance mandate. Virginia enacted a law this year to prevent that state from imposing a health insurance mandate.

U.S. Rep. Lynn Jenkins, a Kansas Republican who’d urged Six to get involved, called his decision “extremely disappointing” and “a break from our state’s storied history founded in personal responsibility and individual liberty.”

Sebelius is a defendant in both lawsuits. She appointed Six attorney general in January 2008 after Six’s predecessor was forced to resign because of a sex scandal. She joined the Cabinet in Washington in April 2009.

“There is a clear conflict of interest to me,” said state Rep. Aaron Jack, an Andover Republican.

Jack and 21 other Republicans in the Kansas House are sponsoring the resolution requiring Six to file a legal challenge. A 1975 state law allows one chamber to direct the attorney general to challenge the constitutionality of a state or federal statute.

“We have unelected leaders in the executive branch that want Kansas to sit on the sidelines,” Jack said. “That’s a shame, because this is the seminal constitutional event of our generation.”

Some GOP legislators want to amend the state constitution to prohibit Kansas from requiring individuals or businesses to buy health insurance. It’s designed to block implementation of the federal law in Kansas and put the state in a better legal position for a challenge.

State Sen. Mary Pilcher-Cook, a Shawnee Republican who advocates such an amendment, said Six’s refusal to challenge the mandate smacks of politics.

“For the federal government to take this step — it is an exceptional violation of individual liberties,” she said.

Six has the backing of Democratic Gov. Mark Parkinson, who was elevated from lieutenant governor to governor when Sebelius left for Washington.

“Governor Parkinson supports Attorney General Six’s analysis and appreciates that he made this decision based on a sound legal analysis and not the politics of the moment,” Parkinson spokesman Seth Bundy said.

Comments

Jimo 4 years ago

"Yup, you really don't seem to understand what's going on."

Yup, if you can't address exposure of your delusions then just pretend that reality doesn't exist, that being forced to defend your assertions is beneath a busy (what, unemployed?) person like yourself. So, refuse any discussion of detail and keep yourself to grand-sounding, pseudo-intellectual abstract points where right/wrong is easily confused with your opinion vs. my opinion. Not much call for that sort of phonyness outside of journalistic-like hackery, btw.

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Chris Golledge 4 years ago

You know Liberty2, you've never answered the question on who you think should have to pay for it when an uninsured person has medical bills they can't pay.

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markoo 4 years ago

I'm also curious about something, Liberty. You've consistently stated that it's just speculative that a person would potentially get hurt and possibly effect economic activity as a consequence. Well, how does that differentiate with the successful argument by the government in Raich? It's entirely speculative whether or not Raich and Monson's growing pot would have somehow effect interstate commerce, yet that potential was there enough for the SCOTUS majority to rule in favor of it potentially interfering with the Commerce Clause. How is that different versus the potential of an individual refusing to buy insurance and potentially effecting economic activity?

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markoo 4 years ago

"It's besides the point because it has nothing to do with an individual. Out of 40 million people someone is going to get cancer, but whether any one individual actually gets cancer is entirely speculative. This is a different line of argument, BTW, and the commerce clause has nothing to do with it. I'm talking about a fifth amendment takings claim. Again, I feel you are just guessing here"

I know what you're referring to, however it still does not make any sense. Cases brought up to SCOTUS like Raich, for example, are not to limit one individual's ability to grow medical pot, but to effectively prevent an entire state (i.e. California coops) from doing it. Yes, the case is brought up by an individual (or in this case, Raich, Monson, and 2 caregivers), but why the hell would any SCOTUS ruling be done so just on the basis of the effects one person has on Commerce? That makes absolutely no sense. Such rulings are made to effect a group of individuals (like the state of California, for ex.). A SCOTUS trial on the new health care bill that would examine the economic effects of one individual choosing not to buy insurance is silly and makes no sense whatsoever, just as it would be to examine the economic (interstate) effects of 1 or 2 people growing pot in their California backyard. This is an examination not on 1 person, but how a group of people choosing not to buy insurance would effect commerce.

And that's the second time in your cute, condescending voice that you've accused me of "just guessing." There are typical signs in a debate when someone is starting to lose a bit of grip on things, one to which when silly accusations of "just guessing" or "you don't know what you're talking about" or "I don't have time to debate someone like you" start flying out. To be honest, I was actually enjoying our discussion and debate, and I'm more than happy to keep up with this discussion, but I think it would be more beneficial if we both drop the attitude and keep with the discussion instead. I hope you're willing.

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markoo 4 years ago

"That's news to me. Scalia has consistently sided in favor of government power. He has no problem with the government telling people they can't be gay or have an abortion. He has no problem with the government agencies making laws, heck he wrote the majority opinion in Whitman v. American Trucking Associations, Inc. Scalia has no problem with the government seizing people's assets without due process and so on. I think you are just guessing about Scalia and similarly you are guessing about the rest of the things you are posting."

Your interpreation of Scalia is what's news to me. What case are you referring to about gay rights? Is it the Boy Scouts case in 2000, the one whom was joined by Rhenquist, Kennedy, O'Connor, and Thomas? It's much more plausible that Scalia ruled this way along with the Conservatives because of his religious beliefs more than his desire to have extensive governmental power, but you're free to make the case otherwise.

Abortion? Again cite the case. Was it not Scalia who joined the dissent in Planned Parenthood v Casey 1992, essentially believing Roe was wrongly decided and should be given back to the states? Yes, he concurred with keeping parental consent, informed consent, and waiting period laws of the state of Pennsylvania, but that's a state right. Or are you arguing the reverse - that Scalia wants the fed government to tell people not to have an abortion? Huh? He's simply for states rights, very, very much for states rights, i.e. as far as abortion rights are concerned. That, if anything, I would expect a libertarian to be somewhat in agreement with.

Whitman v the American Trucking Ass? Jesus, man - that was a 9-0 decision. All 9 justices, both conservative and liberals, agreed that Congress created the CAA and that the powers within the Act were properly delegated to the EPA. "Moreover, the Court held that the Court of Appeals has jurisdiction to review the EPA's interpretation of Part D of Title I of the CAA related to the implementation of the revised ozone NAAQS; however, the EPA's interpretation of Part D was unreasonable."

http://www.oyez.org/cases/2000-2009/2000/2000_99_1257/

Wow, that really sounds like a radical pro-government whacko to me too. Glad you spotted that one, champ. Whew, case closed I guess.....

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Liberty_One 4 years ago

Jimo (anonymous) says…

"Really? You entire modus operandi is to pretend that the law says something other than what it does as a lazy way toward pushing your weird ideology."

Yup, you really don't seem to understand what's going on. The debate here isn't about what the conventional interpretation is of the constitution. I never have pretended that it is anything different than what it is. This has completely escaped you. I have never at any time pretended that what I argue on these issues is the status quo. For you to say otherwise shows the amount of dishonesty you are willing to accede to or that you simply don't understand the topic at hand. I'm leaning toward the latter. You just don't get it. You think there's the "correct" version of the law and that I'm pretending that something else is correct. A rather simplistic view of things which shows your lack of understanding of the law. Good luck with that. I think you've proven yourself to simply be a better spoken version of porch.

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Jimo 4 years ago

Yes, Lib, everyone else is wasting your time. ROFL

"I have a far better understanding of the topics at hand than you."

Demonstrably not so.

"There's never been a question of what the law is."

Really? You entire modus operandi is to pretend that the law says something other than what it does as a lazy way toward pushing your weird ideology.

"What is my response supposed to be?"

Perhaps a precise explanation of actual facts? Of course, you would have to know those facts in advance. I'm not the first or even the second person to point that out to you. Kid, there's no short cut to doing the homework.

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Liberty_One 4 years ago

Why debate with someone who is going to be immature and disrepectful? It is a waste of my time to debate with someone who starts by saying "I am guessing you have not read the constitution." What is my response supposed to be? "Nuh-uh, I have so read the constitution"?

And Jimo, I have a far better understanding of the topics at hand than you. Just because you disagree with me doesn't mean I don't understand what the status quo is. You do an excellent job of stating the status quo, but completely fail to understand that that does little to convince anyone of the correctness of the status quo. This is clearly shown in your statement "Once you've mastered what the law is you can then perhaps advocate what the law should instead be." There's never been a question of what the law is. If you understood the topics at hand you would know this isn't the issue.

"Response would certainly have NOT "wasted" your time (see, John Stuart Mill)."

Are you kidding me? I am thinking you are a waste of my time too.

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Jimo 4 years ago

Lib, I believe the quote was "I suggest actually reading the constitution and then spending a few hours contemplating how that would function if you had your way." Your response was hardly proportional to the offense and was transparently crafted to avoid debate. Response would certainly have NOT "wasted" your time (see, John Stuart Mill).

I too suggest that you read the constitution for the first time without your ideological prejudice. You've long since demonstrated an ability to cite and point to the markers of your ideological agenda as part of your advocacy focus. But your poor understanding of the substance of the topics at hand severely undercut your marshaling of arguments and curtail your ability to persuade anyone.

Lawrence Tribe wrote a highly regarded treatise on constitutional law. Any law library will carry the multi-volume treatise by Rotunda & Nowak. Corwin's is out of date but being pre-Warren might provide a good foundation for the New Deal era. Start with the Art. I, s. 8, powers to the Congress, which I know you have a keen interest in. Once you've mastered what the law is you can then perhaps advocate what the law should instead be.

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Liberty_One 4 years ago

Jimo, I'm not responding to his post when he starts out by accusing me of not having even read the Constitution. There's no room for civil debate with someone like that, that is a troll. If he wants to make a post where he respectfully disagrees I'll respond in kind. But I'm not going to waste my time with someone who's going to act so immaturely and disrespectfully from the outset.

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Jimo 4 years ago

"it seems my argument has gone over your head. Apparantly you have absolutely no idea what I'm talking about, and I doubt it's worth my time to explain it to someone who's going to make such immature and condescending comments like you have."

Translation: You've cornered me. I could show character and admit error. Or I could take the cowards way and pretend that you're a troll. Guess which I'll take?

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Liberty_One 4 years ago

markoo (anonymous) says…

"a high majority of his decisions have sided with limiting government powers as a result of his similar ideals to the Constitution that it would appear you share"

That's news to me. Scalia has consistently sided in favor of government power. He has no problem with the government telling people they can't be gay or have an abortion. He has no problem with the government agencies making laws, heck he wrote the majority opinion in Whitman v. American Trucking Associations, Inc. Scalia has no problem with the government seizing people's assets without due process and so on. I think you are just guessing about Scalia and similarly you are guessing about the rest of the things you are posting.

"I fail to see how the group of uninsured individuals will inevitably rise costs to the insured and therefore have an economic effect and fall under the Commerce Clause through their inactivity is somehow besides the point. To me that's exactly the point."

It's besides the point because it has nothing to do with an individual. Out of 40 million people someone is going to get cancer, but whether any one individual actually gets cancer is entirely speculative. This is a different line of argument, BTW, and the commerce clause has nothing to do with it. I'm talking about a fifth amendment takings claim. Again, I feel you are just guessing here.

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markoo 4 years ago

Liberty_0ne states:

"OK, you're just guessing here. Your description of Scalia is completely incorrect."

Explain. Be specific. Scalia has called himself a "strict constructionist" in the past, and a high majority of his decisions have sided with limiting government powers as a result of his similar ideals to the Constitution that it would appear you share. And yes, he sided with the majority on Raich, so you're being a little confusing and you need to explain yourself better on how I'm guessing.

"But if it does than what doesn't fall under the Commerce Clause? You're missing the point. Why even have a constitution if there are no limits whatsoever? Where is the line?"

I get your point, and I even concede it to a small extent. I understand your philosophical perspective here, but based on case law that I've explained above, coupled with the fact that you have Scalia in the majority on a decision that this current law would likely utilize to support itself, it's highly unlikely this will be overturned in any way.

"You're talking about groups of people. For any one individual it's entirely speculative. You want to take away their property on a speculative basis. I understand that, as a group of people, the uninsured are going to incur health care costs. That's completely besides the point, the law is applied one person at a time."

I think this is a matter of interpretation. I fail to see how the group of uninsured individuals will inevitably rise costs to the insured and therefore have an economic effect and fall under the Commerce Clause through their inactivity is somehow besides the point. To me that's exactly the point. But I think we're getting to a point of agreeing to disagree here.

"No, that isn't what you referred to. You specifically said if I disagreed that meant I would want to still have slavery and voting discrimination against women and minorities."

I meant those as examples, perhaps not the best ones involving judicial autonomy to have interpretation and influence on the law. However, it's worth noting that those laws created by Congress were the direct result of decisions and interpretations from the judiciary. My point being is that the judiciary has direct involvement in interpretation and therefore how a law is applied, and that it's not merely the legislative creating the laws that matters.

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Eride 4 years ago

I doubt that is the case.

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Liberty_One 4 years ago

Eride, it seems my argument has gone over your head. Apparantly you have absolutely no idea what I'm talking about, and I doubt it's worth my time to explain it to someone who's going to make such immature and condescending comments like you have.

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Eride 4 years ago

"Liberty_One states:

The beauty of the Constitution is that the law is written down so that we know what it is. Letting judges re-write it without us voting on it is not what the founders intended. The things you list, slavery, women's suffrage, minoritiies' suffrage, were not achieved by judicial reinterpretation but through the proper method--amendments to the Constitution."

I am guessing you have not read the constitution and/or not recieved a basic legal education. If you had read the constitution you would be aware of how short it is. Unlike the constitutions of other Western countries that read much like our statutory system... the constitution of our country is very basic and very broad. The reasoning for this could be discussed in hundreds of pages and even if I could provide valuable insight into it... this obviously isn't the proper format. I only thought it apt to point this out... considering your assertion that the constitution was some divine document that needed no judicial inference.

The judiciary's right to judicial review was established in 1803 and has continued ever since. Marbury v. Madison, 5 U.S. 137 (1803). This isn't some new idea that just came up, it has been a well defined role of our judiciary since shortly after the revolution.

You might not agree with it, but your assertion that the constitution read like a book of statutes under literal interpretation is illogical. I suggest actually reading the constitution and then spending a few hours contemplating how that would function if you had your way. Furthermore, the judiciary isn't rewriting the constitution, they are defining it, as is the judiciary's role. Feel free to point to several examples of judicial decision that you don't agree with, I am sure you can just as easily point to several examples of legislative action that you don't agree with. Isn't that the point of having judicial review?

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Liberty_One 4 years ago

markoo (anonymous) says…

"Regardless, the reality is that you have someone like Scalia in the majority on Raich, a Justice who calls himself a strict constructionist who clearly likes to limit government power (with the exception of national security) as much as possible."

OK, you're just guessing here. Your description of Scalia is completely incorrect.

"the health care bill does indeed fall under the Commerce Clause"

But if it does than what doesn't fall under the Commerce Clause? You're missing the point. Why even have a constitution if there are no limits whatsoever? Where is the line?

"What's more certain is the fact that the burden of medical costs that the uninsured largely get shifted onto those who are insured."

You're talking about groups of people. For any one individual it's entirely speculative. You want to take away their property on a speculative basis. I understand that, as a group of people, the uninsured are going to incur health care costs. That's completely besides the point, the law is applied one person at a time.

"the flexibility I referred to is the power that the Judiciary has on interpreting and applying those written words to settle disputes."

No, that isn't what you referred to. You specifically said if I disagreed that meant I would want to still have slavery and voting discrimination against women and minorities.

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markoo 4 years ago

"The beauty of the Constitution is that the law is written down so that we know what it is. Letting judges re-write it without us voting on it is not what the founders intended. The things you list, slavery, women's suffrage, minoritiies' suffrage, were not achieved by judicial reinterpretation but through the proper method--amendments to the Constitution. Having a flexible law means having no law at all."

Again, I'm no legal scholar, but the flexibility I referred to is the power that the Judiciary has on interpreting and applying those written words to settle disputes. That directly implies that the decisions they make (and ultimately the decisions by SCOTUS) are the final interpretations of such laws, and therefore such interpretations of laws are what will govern any future similar decisions unless Congress specifically creates a new law overturning such decisions. No, the Judiciary is not creating laws (that's Congress, of course), but their interpretations from their decisions is in of itself how a law is understood and followed.

I'm sorry if you don't like these powers of the Judiciary. In many instances I don't like their decisions much either. But this is the essence of case law and precedent, and does not necessarily require new Amendments to be made every time, nor does the Constitution require it, unless Congress feels such judiciary decisions were wrong and are able to create a new law that supersedes those said decisions.

Pretty sure that was Government 101 stuff.

"That's the rule of men and not of laws, which is exactly what the founders were trying to avoid."

Equating our current system of government involving the separation of powers of each branch, including the powers of the judiciary to make decisions that stand unless the legislative branch creates new laws that wipe out their decisions, to that of an English King tyrant is patently absurd.

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markoo 4 years ago

"You say you don't see how this is speculative, then you speculate about what happens to someone without insurance. It could very well also be that they don't end up with monumental bills because they don't have any major medical problems."

There's always a very small probability that maybe one or a small group of uninsured individuals may not ever have any medical problems that ultimately shift the burden onto the rest of us insured. But that's much more speculative of you to assume that. What's more certain is the fact that the burden of medical costs that the uninsured largely get shifted onto those who are insured. For example, a study done by Families USA 1 year ago found the following in their key findings:

* The uninsured paid for, on average, more than one-third (37 percent) of the total costs of the care they received out of their own pockets.
* Third-party sources, such as government programs and charities, paid for another 26 percent of that care.
* The remaining amount, approximately $42.7 billion in 2008, was unpaid and constituted uncompensated care.

To make up for this uncompensated care, the costs were shifted to insurers in the form of higher charges for health services. These higher charges are then passed on to families and businesses as higher premiums. The impact of this hidden health tax on annual premiums for families and individuals in 2008 was as follows:

* For family health care coverage, the hidden health tax was $1,017.
* For health coverage provided to single individuals, the hidden health tax was $368.

http://www.familiesusa.org/resources/publications/reports/hidden-health-tax.html

There's more studies like this that conclude along very similar lines. I would have thought this point would have been obvious to you. You can claim ignorance of this point all you want, but if you do so then you're going to need to supply evidence to support your assertion as well. As it stands now, it's apparent that the uninsured as a group do, in fact, shift costs onto the insured, and therefore a consequence of their refusal to buy insurance can be regulated under current case law.

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markoo 4 years ago

Liberty_One states:

"But then you go on to quote Scalia and Stevens as saying basically it could be anything at all. But then you go on to quote Scalia and Stevens as saying basically it could be anything at all. Where is the line drawn for Congress's power? There is no line at all: "the de minimis character of individual instances arising under that statute is of no consequence." Anything that could possibly be said to somehow affect commerce thus passes this extremely broad test. Anything at all can be regulated by Congress under Wickard and therefore this isn't a restriction on Congress's power whatsoever. There might as well not be a Constitution if it has no meaning like this."

That's a bit melodramatic. I agree that this case raises some very interesting questions about Congressional power. The so-called "rational basis" test is what was applied in this case, which from what I read indicates Congress must make a rational case for particular items or activities directly effecting interstate activity somehow. If Congress can do this, then they will win every case. However, it will ultimately be up to the courts (and if it goes far enough, SCOTUS) to decide if Congress' rational basis test is valid on each instance (or in this case, with the health care bill if it ever goes that far).

Regardless, the reality is that you have someone like Scalia in the majority on Raich, a Justice who calls himself a strict constructionist who clearly likes to limit government power (with the exception of national security) as much as possible. We must also take into consideration that the health care bill does indeed fall under the Commerce Clause, since it's well documented in case law (like one I supplied above) that insurances are part of economic activity and can therefore be regulated by Congress. And even in the highly unlikely scenario that it's somehow successfully demonstrated not to involve economic activity, thanks to Raich and other cases cited previously, Congress can still regulate it. And given a majority vote in a Conservative SCOTUS with a strict constructionist in the majority, the likelihood of a successful overturn of this law is extraordinarily low.

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clintstone 4 years ago

I laugh at the idiots who think the great savior from Kenya is gonesaveusall! You will weep over the death of this once great nation. This type of dia"tribe" from the AG just shows he is a political prostitute like the criminals that passed the phony statute which isn't even a law anyway. It will be target shooting time on IRS soon.

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Liberty_One 4 years ago

markoo (anonymous) says…

"You're incorrect to assume this "could be anything at all," "

But then you go on to quote Scalia and Stevens as saying basically it could be anything at all. Where is the line drawn for Congress's power? There is no line at all: "the de minimis character of individual instances arising under that statute is of no consequence." Anything that could possibly be said to somehow affect commerce thus passes this extremely broad test. Anything at all can be regulated by Congress under Wickard and therefore this isn't a restriction on Congress's power whatsoever. There might as well not be a Constitution if it has no meaning like this.

"I'm not sure how you can call this process speculative....they end up unable to pay for such monumental bills because they have no insurance assisting in the coverage."

You say you don't see how this is speculative, then you speculate about what happens to someone without insurance. It could very well also be that they don't end up with monumental bills because they don't have any major medical problems.

"Besides, it was the founders who created our Constitution and our branches of government to create, judge, and interpret such laws accordingly to how our branches see fit. That's the absolute beauty of the flexibility of our Constitution by allowing such laws to evolve over time. And thank God for that, unless you still want it legal to have slaves, illegal for women and African Americans to vote, etc. etc......"

The beauty of the Constitution is that the law is written down so that we know what it is. Letting judges re-write it without us voting on it is not what the founders intended. The things you list, slavery, women's suffrage, minoritiies' suffrage, were not achieved by judicial reinterpretation but through the proper method--amendments to the Constitution. Having a flexible law means having no law at all. That's the rule of men and not of laws, which is exactly what the founders were trying to avoid.

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Eride 4 years ago

I have two comments.

  1. Articles are not law, it doesn't matter who writes them...they are an opinion and an opinion only.

  2. It is asinine for this much anger to occur from the AG refusing to file a pointless and expensive suit. This state can't even afford to keep the courts open during normal business hours and yet some people want the AG to file a law suit that is bound to fail and is already being filed by several different parties! There is nothing to gain here and our AG is saving us from potentially millions of dollars being wasted for nothing.

Seems pretty darn smart to me...

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markoo 4 years ago

"Furthermore, just because this has been the case law since Wickard does not make it the right way to decide. The Supreme Court has been wrong and continues to be wrong on some issues. Kelo v. City of New London was a case that was criticized across the country and a majority of states went about making amendments to their state constitutions to make such an abuse of power illegal in their state. Agriculture and trade existed at the time of the founders, yet the Supreme Court in Wickard took a completely different view of the commerce clause then the founders did. I do not think that view is the correct one and that Wickard and its progeny are incorrect."

I'm not familiar enough with these cases to examine and opine on them with any authority, though I do agree that SCOTUS can be wrong on some issues (which is, of course, subject to our own opinions on their rulings). However, what strengthens case law is not merely one ruling, but a culmination of rulings that gives such laws precedent. The fact that Wickard has been upheld for so many years, and was even further bolstered with similar arguments like the most recent case of Raich in 2005 certainly appears to demonstrate the strength in those cases as precedent. Otherwise, such laws and interpretations of those rulings would have certainly been overturned by now, rather than strengthened by case after case.

So you may disagree with what SCOTUS has been interpreting with what the founders believed in Commerce, and you may even have a point. But the likelihood of overturning such a case based on this belief of yours certainly won't stand much of a chance against precedent. Besides, it was the founders who created our Constitution and our branches of government to create, judge, and interpret such laws accordingly to how our branches see fit. That's the absolute beauty of the flexibility of our Constitution by allowing such laws to evolve over time. And thank God for that, unless you still want it legal to have slaves, illegal for women and African Americans to vote, etc. etc......

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markoo 4 years ago

"The Federalist's Society article brings up another good point regarding the takings clause. You and porch talk about the likelihood that everyone will need health care, sure, but for each individual this is speculative. The speculative nature makes me question whether this could even pass rational basis review on an as applied, individual basis."

I'm not sure how you can call this process speculative. It's pretty clear what occurs with those who don't purchase insurance - they self-insure by going to the ER instead of going to their doctors or Urgent Care centers for non-emergencies. Or even in the case of an emergency, they end up unable to pay for such monumental bills because they have no insurance assisting in the coverage. These actions increase the cost of health insurers and those individuals in health risk pools, therefore making it more costly. Such activities are therefore not on an individual basis when the cumulative effect of their actions (i.e. failure to buy insurance) adversely affects other groups of individuals. Such effects of those failing to buy insurance is well known and accepted, even by the insurance companies. I'll conclude with an argument from Professor Jack Balkin in a debate on this subject with David Rivkin and Lee Casey:

"The remaining persons have attempted to save money by refusing to purchase any health insurance at all, presumably to conserve their income for savings or for other expenditures. Either their behavior is economic activity or it is non-economic activity. If it is economic activity, it clearly affects risk pools nationwide, drives up costs for insurers and insureds, and has a substantial cumulative effect on interstate commerce. Therefore, Congress may reach it under the Commerce Clause. If it is labeled non-economic activity, it still has the same powerful economic effects. Indeed, without an individual mandate that pushes uninsured persons into the risk pool, health insurance reform may not succeed, as Rivkin and Casey themselves point out. Therefore, Congress may regulate this purportedly non-economic behavior as part of a comprehensive scheme of health insurance reform because doing so is “‘an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.’” Raich, at 545 U.S. at 23-24 (quoting Lopez, 514 U.S. at 561); see also id. at 36-37 (Scalia, J., concurring in the judgment)."

http://www.pennumbra.com/debates/debate.php?did=23

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markoo 4 years ago

"This is precisely the problem because this could be anything at all. No, the dissents aren't binding authority, but they bring up the point that if the majority's analysis is taken to its logical conclusion, there is aboslutely nothing congress cannot do because everything, somehow, has some efffect on interstate commerce. Thomas points out: "If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything--and the Federal Government is no longer one of limited and enumerated powers....If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 states." Raich at 57-58, 69 (J. Thomas, dissenting). Thus either congress has unlimited power or the standards set forth in Wickard and Raich are not workable standards."

You're incorrect to assume this "could be anything at all," as well as Thomas' dissent. Again I would point out another hard-line Conservative Justice's opinion, Justice Scalia, who certainly holds no love for government powers on much of anything (other than war) when he stated:

"The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself “substantially affect” interstate commerce. MOREOVER, AS THE PASSAGE FROM LOPEZ QUOTED ABOVE SUGGESTS, CONGRESS MAY REGULATE EVEN NONECONOMIC LOCAL ACTIVITY IF THAT REGULATION IS A NECESSARY PART OF A MORE GENERAL REGULATION OF INTERSTATE COMMERCE. See Lopez, supra, at 561. The relevant question is simply whether the means chosen are “reasonably adapted” to the attainment of a legitimate end under the commerce power.

http://law.cornell.edu/supct/html/03-1454.ZC.html

Emphasis above mine.

You should read his opinion. Granted, I'm not a Scalia fan either, but in this case his argument was exactly what the majority concurred with - that this particular case involving noneconomic local activity did indeed have an effect on interstate commerce, therefore Congress had such regulative authority under the Commerce law. As Justice Stevens opined:

""[W]hen a general regulatory scheme bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence."

Continued...

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Pilgrim2 4 years ago

This comment was removed by the site staff for violation of the usage agreement.

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Pilgrim2 4 years ago

porch_person (anonymous) says…

Is "Pilgrim2" your first account name or was there a "Pilgrim1" or just plain "Pilgrim"?


If there were even a snowball's chance in hell that question had any relevance to the topic, I might indulge your anorexic attempt at diversion.

Nah. Not even worth that effort.

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Liberty_One 4 years ago

I understand it may appear that my complaints about government are dogmatic, but it's not so much against government as an institution but against coercive intervention into private human affairs. That's why I don't have a problem with the government acting in its judicial role, but in fact highly approve of this role. So I don't blindly state that government is the problem without thinking about it. I put much thought into as well as study of history and economics.

"If you don't think government is a mechanism for implementing social justice, you haven't been paying attention."

But the question is whether it should be. I think social justice should be achieved by private action. Using coercive power seems to be the ends justifying the means, which leads to very immoral actions.

The term "cosmic justice" comes from "The Quest For Cosmic Justice" by Thomas Sowell.

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porch_person 4 years ago

Liberty_One,

I never said government is perfect. I just never call for its abolition or blindly state "Government is the problem" (like you do) without thinking about it first . If you don't think government is a mechanism for implementing social justice, you haven't been paying attention. Where you got "cosmic justice" is probably out of a comic book.

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Liberty_One 4 years ago

porch_person (anonymous) says…

"Government is not the problem."

Sometimes it is the problem. You seem to think it never is the problem.

""Gub'ment" is there for a reason"

Governments are instituted among men in order to secure individual rights like life, liberty and property. I don't think government is a tool of social engineering or to provide the means to bring about cosmic justice.

"Jeez, will you stop reading these stupid Libertarian pamphlets / books / websites. They're ruining your mind. Or read other things besides Libertarian crap."

I do read conservative and progressive authors, most of the ones who write for this paper are conservative or progressive like Cal Thomas, George Will or Leonard Pitts. They aren't as convincing as the "libertarian crap."

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porch_person 4 years ago

Liberty_One,

Government is not the problem. Governments don't create change all by themselves.

Jeez, will you stop reading these stupid Libertarian pamphlets / books / websites. They're ruining your mind. Or read other things besides Libertarian crap. (God forbid you accuse me of censorship). "Gub'ment" isn't de facto the problem. "Gub'ment" is there for a reason, (as you often learn when you propose doing away with one or more aspects of it and I point out why they are necessary and you begrudgingly reestablish them).

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verity 4 years ago

Richard Cordray, the AG of Ohio and Tom Miller, AG of Iowa have also stated that they will not pursue lawsuits against the health care bill.

If you're interested in their reasoning, it's in the opinion section of Politico.

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Liberty_One 4 years ago

porch, It think it's important because if we don't learn from the mistakes of the past we are doomed to repeat them. Wage controls, medicare, medicaid, the HMO Act of 1973, EMTALA etc. all gave us this modern mess of a health care system we have. No one wanted it to turn out this badly, but it did. That's because there always seems to be unintended consequences. What will the unintended consequences be of this health care legislation? For example, insurance firms can no longer deny coverage or charge higher rates because of pre-existing conditions. Also they cannot establish annual spending caps. These measures could drive costs up and profits down, with the possible unintended consequence of driving the less profitable insurance firms out of business. Hence only the biggest firms will survive and the market will have less competition, allowing the existing firms to raise prices further on all their customers (OK as long as they don't discriminate on those with pre-existing conditions).

There are other problems I foresee which again will require the government to step in and create new regulations to solve, ad nausem. It's a cycle--the government intervenes to solve a problem creating new ones which cause it to intervene yet again. That's why I bring up history because I think the lesson is important. Perhaps you think congress can fine-tune the bill to deal with problems as they come up, but I simply think it's not possible.

I recognize that government-paid for health care is a popular idea and arguments can be made that it is allowed by the constitution. If that must be the case I would prefer we go about it like food stamps--if you make less than a certain amount of money you get health care "stamps." You could use it any way you choose for health care--you could buy insurance or just use it directly on seeing a doctor or buying pharmacueticals. This would provide the "safety net" for poor individuals while maintaining freedom of choice with how to provide health care for oneself.

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porch_person 4 years ago

Liberty_One,

We're talking about today, Liberty_One. It's an interesting piece of historical trivia but BlackVelvet seems to have a problem with people (elected officials especially) getting health insurance as a perk when the real point is "Why not let everyone have "health insurance""? That's the whole point of the health reform package.

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Liberty_One 4 years ago

porch_person (anonymous) says…

"Many companies pay for health insurance. Not as many as there used to be but some still do"

Used to be that almost no businesses paid for health insurance until wage controls were implemented in WW2.

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Liberty_One 4 years ago

markoo (anonymous) says…

"Under an unbroken line of precedents stretching back 70 years, Congress has the power to regulate activities that, taken cumulatively, have a substantial effect on interstate commerce."

This is precisely the problem because this could be anything at all. No, the dissents aren't binding authority, but they bring up the point that if the majority's analysis is taken to its logical conclusion, there is aboslutely nothing congress cannot do because everything, somehow, has some efffect on interstate commerce. Thomas points out: "If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything--and the Federal Government is no longer one of limited and enumerated powers....If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 states." Raich at 57-58, 69 (J. Thomas, dissenting). Thus either congress has unlimited power or the standards set forth in Wickard and Raich are not workable standards.

The Federalist's Society article brings up another good point regarding the takings clause. You and porch talk about the likelihood that everyone will need health care, sure, but for each individual this is speculative. The speculative nature makes me question whether this could even pass rational basis review on an as applied, individual basis.

Furthermore, just because this has been the case law since Wickard does not make it the right way to decide. The Supreme Court has been wrong and continues to be wrong on some issues. Kelo v. City of New London was a case that was criticized across the country and a majority of states went about making amendments to their state constitutions to make such an abuse of power illegal in their state. Agriculture and trade existed at the time of the founders, yet the Supreme Court in Wickard took a completely different view of the commerce clause then the founders did. I do not think that view is the correct one and that Wickard and its progeny are incorrect.

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BlackVelvet 4 years ago

Concressmen don't pay into social security. Their health insurance is much much better than what most of us have. I'd imagine Obama doesn't pay a co-pay or a deductible on his health coverage.

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porch_person 4 years ago

BlackVelvet,

Who says they are not? Many companies pay for health insurance. Not as many as there used to be but some still do. It's called "a perk". Our elected officials get their health insurance paid for by......we the taxpayers. Along with their salary.

Now if you have a problem with elected officials getting health insurance paid for by taxpayers, then the logical extension of that line of thinking would be that you object to elected officials getting a salary from taxpayers. That elected officials should have to "pay their own way, which would include their health insurance as well".

Is that what you're getting at?

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BlackVelvet 4 years ago

would someone please tell me, if this is such a good deal, why aren't the congressmen/senators/president participating in it? No one seems to give a hoot about this fact.

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porch_person 4 years ago

If I may jump in to this rather good dialogue both of you are having,

I think the "non-activity" argument fails on the example I've been suggesting repeatedly on this subject. It implies that one would not get sick and utilize the health care system. Yes, if one could guarantee that one would never use the health care system, then I think you have a point but we all know that is a guarantee that no one can honor. Analogous with auto insurance, mandatory because no one can guarantee that one will never have an accident.

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markoo 4 years ago

"if there is any line at all to be drawn, then how can this be constitutional--regulating a non-activity, the non-purchase of health insurance?"

I think this is a bit of a semantics game here. The court won't examine this as a "non-activity", because how exactly is that defined? The act of refusing to buy insurance cannot be called a "non-activity", because it is an act of refusal in of itself. Is there case law that defines this word, "non-activity", or is this your word? In any case, the question is whether or not the Commerce power is limited only to that which is engaged in commercial activity. As depicted earlier, it isn't limited to that. Again, Dr. Chemerinsky:

"Under an unbroken line of precedents stretching back 70 years, Congress has the power to regulate activities that, taken cumulatively, have a substantial effect on interstate commerce. People not purchasing health insurance unquestionably has this effect.

There is a substantial likelihood that everyone will need medical care at some point. A person with a communicable disease will be treated whether or not he or she is insured. A person in an automobile accident will be rushed to the hospital for treatment, whether or not he or she is insured. Congress would simply be requiring everyone to be insured to cover their potential costs to the system. "

Even a "non-activity", as you depict, therefore has an effect on commercial activity, lest everyone of those individuals who refuse to buy insurance choose not to be treated by health care practitioners like myself. That seems terribly unlikely.

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markoo 4 years ago

Liberty_One writes:

"First of all I think if you would read the 2005 decision, Gonzalez v. Raich, the made-up distinction created by Rehinquist in Lopez and Morrison regarding economic vs. non-economic activity has completely been evaporated."

I wouldn't say it evaporated, but Raich certainly did open more possibilities for Congress to regulate commerce. So you are correct to point that out, but this case law only bolsters precedent for the health care bill, not hurt it. Note Scalia's concurrence here: http://law.cornell.edu/supct/html/03-1454.ZC.html

"Regardless, the challenge would be because a non-activity--not buying health insurance--is what is at stake. Non-action isn't economic activity. It's not activity at all. Under Wickard's broad standard of course this regulation could be brought under the commerce clause--but what wouldn't? If the commerce clause is a limitation on congress's power, under Wickard and Raich, is there any possible action by congress that would exceed the scope of the Interstate Commerce Clause?"

As stated previously, it doesn't have to be economic activity, with the Raich case you just cited. SCOTUS has not once ever ruled that the Commerce Clause commerce is limitations pertaining only to regulating commercial activity. Erwin Chemerinsky, professor of law at the University of California, Irvine School of Law writes , ".....The court has said that Congress can use its commerce power to forbid hotels and restaurants from discriminating based on race, even though their conduct was refusing to engage in commercial activity. Likewise, the court has said that Congress can regulate the growing of marijuana for personal medicinal use, even if the person being punished never engaged in any commercial activity."

http://dyn.politico.com/printstory.cfm?uuid=7DFE7C51-18FE-70B2-A81B83D9F09A146F

"I think if we look at J. Thomas's dissent in Raich you will find your "good case law argument" that would hold water against this bill. Also O'Connor's dissent as well."

I'm going to plead a little ignorance here because I'm running a little low on time, so I won't be able to read their dissents in full. Not much of a fan of Thomas in the first place, but am willing to read them when I have more time. In any case, I'm not sure dissenting views will hold much precedent here if this ever goes that high. I believe it's the ruling majority opinion that receives precedent when it comes to any court examining previous case law to justify their decisions. Otherwise, there really wouldn't be much sense in ruling at all if we have a court that examines dissents instead, would there?

Continued on the next post.

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Jimo 4 years ago

"Non-action isn't economic activity."

Of course it is. Stop wasting people's time. And stop mooching off my money you welfare cheat - buy your own damn health insurance!!!

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CHEEZIT 4 years ago

How long is it going to take me to get to see my doctor once this takes effect? If I feel I can't wait that long and go to the emergency room what is the line there going to be like???

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Liberty_One 4 years ago

markoo (anonymous) says…

"Now, if one can seriously create an argument that the health care bill has nothing to do with economic activity in our country, then you'll have good precedent and will likely win the case."

First of all I think if you would read the 2005 decision, Gonzalez v. Raich, the made-up distinction created by Rehinquist in Lopez and Morrison regarding economic vs. non-economic activity has completely been evaporated. Regardless, the challenge would be because a non-activity--not buying health insurance--is what is at stake. Non-action isn't economic activity. It's not activity at all. Under Wickard's broad standard of course this regulation could be brought under the commerce clause--but what wouldn't? If the commerce clause is a limitation on congress's power, under Wickard and Raich, is there any possible action by congress that would exceed the scope of the Interstate Commerce Clause?

I think if we look at J. Thomas's dissent in Raich you will find your "good case law argument" that would hold water against this bill. Also O'Connor's dissent as well. If the commerce clause is to have any teeth at all, if there is any line at all to be drawn, then how can this be constitutional--regulating a non-activity, the non-purchase of health insurance?

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markoo 4 years ago

porch_person states:

"Utt Ohhh.......... Liberty_One ran into a real attorney."

I'm not an attorney. I'm actually a health care professional, and I've been very interested on how this bill will effect my profession. I've just tried hard to pay attention to the details. And as it stands now, I have not seen any good case law arguments that would hold water against this bill.

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porch_person 4 years ago

(laughter)

Utt Ohhh.......... Liberty_One ran into a real attorney.

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Gabriel Engeland 4 years ago

It's law. It's constitutional. It won't be repealed. The Supreme Court won't overturn it--if they hear it--it's a slam-dunk case.

As I have stated before, like it or not, it's not about to be invalidated. Focus your energy on changing/amending the parts you don't like. Elect people that are willing to do this. Crying and having a hissy fit doesn't help.

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markoo 4 years ago

Liberty One states:

"Umm, no they don't. Did you actually read the Federalist Society's article?"

You're right, that was one of the papers I read that called the bill unconstitutional. My apologies. I had that confused with this paper written by Mark Hall, Georgetown Law Professor:

http://www.law.georgetown.edu/oneillinstitute/projects/reform/Papers/Individual_Mandates.pdf

It does give me a chance, however, to explain the fallacy in the argument by the Federalist Society. Their argument lies on case law of SCOTUS in Lopez and Morrison and how those decisions restrict Congress' ability to regulate within the Commerce Clause. The immediate flaw in their argument is that both of those cases have nothing to do with economic activity. Now, if one can seriously create an argument that the health care bill has nothing to do with economic activity in our country, then you'll have good precedent and will likely win the case.

Umm, best of luck with that, however. As SCOTUS explained in both cases above, ""the noneconomic, criminal nature of the conduct at issue was central to our decision." (cited from the Georgetown Law Professor's paper I cited above.).

In regards to the argument of excise tax on the mandate, again I would direct you to what Professor Hall says in his paper, starting on page 7. He thoroughly covers each every argument brought up by the Federalist Society.

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porch_person 4 years ago

Pilgrim2,

(laughter)

I can see you're busy thinking up new ad hominem because you can't stay on point. You're not "representing" conservatives very well.

You haven't answered my question. Was there a "Pilgrim1" or a 'Pilgrim" in your past?

(laughter)

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porch_person 4 years ago

Pilgrim2,

(laughter)

I can see you're busy thinking up new ad hominem because you can't stay on point. You're not "representing" conservatives very well.

You haven't answered my question. Was there a "Pilgrim1" or a 'Pilgrim" in your past?

(laughter)

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Pilgrim2 4 years ago

Liberty275 (anonymous) says…

Be careful, * will get delusions you are calling him a pig in Italian.


I'm not?

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Liberty_One 4 years ago

markoo (anonymous) says…

"Both examine court precedent and rightly conclude this current health care law is constitutional."

Umm, no they don't. Did you actually read the Federalist Society's article?

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lynniesue 4 years ago

i think it is a smart thing that he is not wasting money kansas already doesnt have on something that if it does make it to the supreme court and is overturned will effect us all...and here is a thought on car insurance...if it is a state by state mandate why not let the people of the state decied on health insurance this way too... let it be a state law not a federal law...i personally dont think our counrty needs anymore debt but something has to be done about health insurance

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kujayhawk7476 4 years ago

So, the AG is is up for re-election as are many other members of the Kansas legislature, the US House of Representatives and the US Senate. Here's an idea that is way past it's time; let's send all those up for re-election to any office, home to find jobs in the economy they have created and done nothing about, buy healthcare the way you and I do and participate in Social Security as you and I do. Wow, how simple this really is!

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Paul R Getto 4 years ago

Good move, A.G. No point in wasting money while we are in the middle of our manufactured budget crisis.

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jstthefacts 4 years ago

Six did make a decision considering the legal basis for a lawsuit and concluded that there was none. The only chance for the right wingers to trump this health care law is to get it to the conservative supreme court. It worked when the conservative supreme court disenfranchised the will of the american voters and appointed the Bush regime to the presidency. Only way to get it to the supreme court is for all the chest beaters to pursue law suits in-spite of the complete lack of legal standing in hopes of getting to their politcal buddies in the supreme court.

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Katara 4 years ago

markoo (anonymous) says… Yes, you still do have a choice not to have insurance, but you'll pay a penalty fee come tax season. Not to worry though, because the little secret about the mandate if you refuse to pay the tax for choosing not to buy insurance is that they aren't enforcing a penalty on you in any way. Ezra Klein on the Washington Post mentions this:

"And what happens if you don't buy insurance and you don't pay the penalty? Well, not much. The law specifically says that no criminal action or liens can be imposed on people who don't pay the fine. If this actually leads to a world in which large numbers of people don't buy insurance and tell the IRS to stuff it, you could see that change. But for now, the penalties are low and the enforcement is non-existent."

http://voices.washingtonpost.com/ezra... ~~~~~~~~~~~~~~ I was sure I had read about that somewhere but just couldn't recall where. Thanks for the link!

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markoo 4 years ago

Liberty275 posts:

"Re: constitutionality of forcing citizens to buy a corporation's product - the Roberts court will slap obamacare down before the republicans get a chance to not fund it."

Can you cite court precedent that you believe Roberts and the other Conservatives on SCOTUS would utilize that would support your assertion? Granted, there's a small inkling of possibility that the Conservatives on SCOTUS will ignore precedent (as they have done in the most recent past), but there's very few legal scholars out there who believe even this Right Wing court would be able to overturn this health care law. In addition to what I posted earlier from the AG from Nevada, here's more legal analysis by the American Constitution Society for Law and Policy, and an analysis by the Federalist Society:

http://www.acslaw.org/pdf/Lazarus%20Issue%20Brief%20Final.pdf

http://www.fed-soc.org/doclib/20090710_Individual_Mandates.pdf

Both examine court precedent and rightly conclude this current health care law is constitutional. What is your supporting case law evidence to the contrary?

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Katara 4 years ago

staff04 (anonymous) says… Maybe he's really not challenging the law because he thinks it wouldn't be prudent to spend money the state doesn't have on a lawsuit that at least a dozen other states are willing to fight for Kansas...

If a federal court deems it unconstitutional, it will be unconstitutional for everyone, not just the states that put up the cost of the lawsuit. ~~~~~~~~~~~~~~~~~~~ I think you are absolutely on the money as to AG Six's reasons for not challenging this. Why waste KS taxpayer money when we'll know the results from the other lawsuits?

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Liberty275 4 years ago

"We are forced to buy car insurance or pay a penalty."

Specious argument. You arent forced to buy car insurance because you aren't forced to buy a car to insure. No car, no insurance. Period.

It's almost stupid to have to point this out, but the federal government doesn't require you to have insurance if you own a car anyway.

"Aw, isn't that cute. Poochie"

Be careful, * will get delusions you are calling him a pig in Italian.

Re: constitutionality of forcing citizens to buy a corporation's product - the Roberts court will slap obamacare down before the republicans get a chance to not fund it.

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markoo 4 years ago

lawrenceguy40 states:

"As for socialist, in this case I believe that being forced by government to pay money into a system that then redistributes the money according to their perceived need, is a form socialism. Insurance is a choice. Being forced to buy insurance is socialism."

I think this is a bit overly simplistic, but how exactly is this any different from Social Security and Medicare? And why don't Conservatives argue more against that? Furthermore, why did one of the biggest Conservative leaders, Ronald Reagan, sign into law in 1983 a further expansion of such socialist programs like Medicare and SS, forcing even more $ from our paychecks to give insurance and safety nets to those that the government deems "according to their perceived need"?

Yes, you still do have a choice not to have insurance, but you'll pay a penalty fee come tax season. Not to worry though, because the little secret about the mandate if you refuse to pay the tax for choosing not to buy insurance is that they aren't enforcing a penalty on you in any way. Ezra Klein on the Washington Post mentions this:

"And what happens if you don't buy insurance and you don't pay the penalty? Well, not much. The law specifically says that no criminal action or liens can be imposed on people who don't pay the fine. If this actually leads to a world in which large numbers of people don't buy insurance and tell the IRS to stuff it, you could see that change. But for now, the penalties are low and the enforcement is non-existent."

http://voices.washingtonpost.com/ezra-klein/2010/03/how_does_the_individual_mandat.html

He's referring to page 336 of the bill: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:h3590eas.txt.pdf

The government is betting on people paying the tax if they refuse to get insurance, and it's likely if that doesn't work they will have better means of enforcement later, but that's certainly not the case now. In any case, the intent is to not give you a choice for buying health insurance, just as there isn't one for socialist programs like Medicare.

Or other socialist taxation for things like federal highways and infrastructure programs. Or taxes for our military. Or taxes for public schools. All horrible socialist programs, I suppose.

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markoo 4 years ago

Solomon and others have requested further examination on the constitutionality of the new health care bill. In the following letter below, Nevada AG Mastow outlines pretty clearly to the Nevada Governor why she will not be pursuing his request of a lawsuit repeal to the health care bill:

"One theory to consider is that Congress lacks authority under the Constitution’s Commerce and Spending Clauses. However, the authority give to Congress is extensive and appears strong enough to support the Act. Health care costs affect our nation’s economy, and the Act is Congress’ answer to alleviating those costs. The United States Supreme Court long ago determined that insurance is commerce and is therefore subject to federal regulation. United States v. South-Eastern Underwriters Ass’n, 322 U.S. 533 (1944). Since the 1930s and the “long-rejected Louchner-era precedents,” MeadWestvaco Corp. ex rel. Mead Corp. v. Illinois Dept. of Revenue, 553 U.S. 16, 128 S.Ct. 1948, 1510 (2008) (Thomas, J. concuring), Congress’ broad authority has been acknowledge to, among other things, uphold mandatory contributions to the Social Security Act system, Helvering v. Davis, 301 U.S. 619 (1937), and legislate many other federal programs."

http://media.lasvegassun.com/media/pdfs/blogs/documents/2010/03/30/Gibbons_3-30-10.pdf

AG Mastow goes on to explain how the argument of the 10th Amendment being used against the bill would also fall short based on court precedent. There's a reason why Senate Minority Leader Mitch McConnell is admitting the GOP won't be able to undo the new law:

http://www.courier-journal.com/article/20100402/BUSINESS/4020352/McConnell++Repeal+drive+might+target+only+parts+of+health+bill

There's a reason why other prominent GOP lawmakers are making similar sentiments about the "repeal" shenanigans:

http://tpmdc.talkingpointsmemo.com/2010/03/corker-health-care-wont-be-repealed.php

http://washingtonindependent.com/81119/richard-burr-it-may-not-be-total-repeal-at-the-end-of-the-day

http://www.google.com/hostednews/ap/article/ALeqM5il892mEYzWO1CD8hZVloHcT8OukAD9EPRIBO0

Republican Senators Burr, Corker, and Cornyn share the same sentiments.

It's patently clear this was nothing but a political ploy for campaign contribution requests by Republicans. Sadly, all too many of their followers are too misguided to catch on, which is exactly what their political leaders and radio blowhard mouthpieces are counting on.

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Buggie 4 years ago

Of course not. He doesnt challenge anything. I agree with the earlier post. He is spineless.

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lawrenceguy40 4 years ago

frwent - we are roughly the same age and have some thoughts along similar lines. However, I am proud to be a conservative and am deeply troubled by the path we are taking as a nation, having being so easily deluded by this fool of a president.

As for socialist, in this case I believe that being forced by government to pay money into a system that then redistributes the money according to their perceived need, is a form socialism. Insurance is a choice. Being forced to buy insurance is socialism.

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feeble 4 years ago

mr_right_wing (anonymous) says…

"We are forced to buy car insurance or pay a penalty.... Why shouldn't we be forced to by health insurance?" = FLAWED reasoning.

Not one blind person has ever been forced to buy car insurance, but they will be forced to buy health insurance.

Yes, but the man featured in your user icon did pass a nifty little piece of legislation, EMTALA, that does force any and all health care providers and ERs that accept government funds (over 90%, nationally) to provide emergency medical care, regardless of the nationality or ability to pay.

The trick here is if you wait long enough any medical condition can become an emergency, especially in the over 50 crowd.

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porch_person 4 years ago

Pilgrim2,

(laughter)

Am I bothering you, Pilgrim2?

I thought it was a clear and elegant explanation of the rationale behind why everyone needs to contribute to the health care situation. Everyone can understand "getting sick". No one thinks they won't get sick at some point. That means that the people who try to frame health care reform as "buying a television you don't want" end up looking stupid.

How does it feel to look stupid, Pilgrim2?

(laughter)

By the way, Pilgrim2, been meaning to ask you........

Is "Pilgrim2" your first account name or was there a "Pilgrim1" or just plain "Pilgrim"?

(laughter)

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jaywalker 4 years ago

No more fed funds for highways, schools, et al........

Shocking decision.

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Pilgrim2 4 years ago

porch_person (anonymous) says…

This is a no-brainer, legally. That's what so funny. None of these "challenges" are worth the weed one could roll up and smoke them with. They are all doomed to failure.


Aw, isn't that cute. Poochie is acting just like a three-year-old blowing out the candles on his birthday cake. Well, make a wish, pucker up, and blow.

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porch_person 4 years ago

Pilgrim2,

Are you part of this "I'll never get sick" demographic? Interesting. How are you accomplishing this?

(laughter)

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porch_person 4 years ago

Good post, frwent. I like that and I agree with a lot of it. I give you extra points for noting the subtle economic threat from China. You are absolutely correct on that point.

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Pilgrim2 4 years ago

wolfy (anonymous) says…

But if you break your leg and you are uninsured and unable to pay out of pocket, you will get expensive treatment at the ER, and those who are insured will foot the bill. We must have full participation to make this work.


You can choose to not own or drive a car. But the Congress has unconstitutionally attempted to force the purchase of insurance simply because someone has the capability of converting oxygen to carbon dioxide. BIG difference.

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Fred Whitehead Jr. 4 years ago

To Lawrence Guy's question whether I am a "socialist" Do you know what a socialist is?

Define it for me.

I am a 66 year old citizen that is sick and tired of the political polariazation of this country that I see being fanned by the likes of Limbaugh and his ilk. Their only goal is to sell their victims (called dittoheads) cheap crap and political scum that is easily digested by small-minded people who think they are republicans and conservatives (another label that is loosely tossed around by persons ignorant of the real scope of political science.)

I like and dislike elements of both sides of the political spectrum (I am in favor of gun control, I am in favor of safe and legal abortion rights, I am in favor of a strong and competant military, I think climate change is happening, I think the algoreism that it is human caused and that we can control it is crap, I think sarapalin is an idiot who is out to be a TV star , I am old enough to shake my head at the aggregiousness of the talk show yammerheads that so many idiots take for hard news, and I am truly convinced that the tea baggers are just another generation of hippies, beatnicks, and non-conformists that have plagued society for many generations.

I do not fit any currently fashionable labels, when did having a liberal attitude become a crime?? (or a conservative for that matter??)

The current rracousness bothers me but not as much as the Chinese owning a large piece of our country. Our ancestors are probably turning over in their graves that we are coddling and befriending the Red Chinese, and know that they will stab us in the back when we are most vulnerable. Nothing good will come of schmoozing up to these very wise and dedicated people who will eventually take over our country and not a shot will be fired.

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friendlyjhawk 4 years ago

Thanks, Six, for your reasonable decision.

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porch_person 4 years ago

Solomon,

(laughter)

Nothing funnier than watching a conservative try to wrap his limited cognitive abilities around a concept which should be self-evident.

(laughter)

The Commerce clause gives the Federal Government mandate to regulate commerce. The Welfare clause gives the Federal Government mandate to intervene in situations which affect the welfare of the citizens. The Sovereignty clause says Federal law trumps State law.

Look it up, Rhodes Scholar.

(laughter)

This is a no-brainer, legally. That's what so funny. None of these "challenges" are worth the weed one could roll up and smoke them with. They are all doomed to failure.

(laughter)

In the end, health care will improve, costs will go down and people will look back at the conservatives of this time and say "death panels"? "Sarah Palin"? "Socialism"? "Tea Baggers / Tea Partiers"? and.........

(laughter)

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Mike Ford 4 years ago

It's funny to hear all of these serfs wanting their own fiefdom with their own rules because their party lost and continues to lose. they attack legal bills with irrational denial and repeat the mantras they hear on fox over and over hoping that the repetition will attract other dimwits like moths to a light. futhermore I'm upset with the money wasted fighting the legal casino of the Wyandotte Nation in KCK by the Six and Morrison AG offices. No one seemed to care about this.

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Edward Coan 4 years ago

The healthcare bill is a ploy for the Democrats in power to sustain their abilty to get reelected...nothing more.

Factually incorrect.

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Eybea Opiner 4 years ago

"The Health Care Reform Bill is constitutional under the Commerce clause, the Welfare clause and the Sovereignty clause of the United States Constitution."

Porch

(shaking my head in disbelief)

I have no doubt that you would support torturing the constitution by twisting the so-called commerce and welfare clauses to cover forcing an individual to purchase a specific product, i.e. health insurance. These clauses have been cited in certain cases to support taxing and spending authority, but nowhere that I'm aware of have they ever been deemed to provide authority to force a citizen to purchase something. If you have such an example I'd be happy for you to point it out to me. I suggest you Google "the commerce clause" and "the welfare clause."

(shaking my head in disbelief)

What is this sovereignty clause of which you speak? The tenth amendment that assigns to the states, or the people, all powers not specifically granted the federal govenment?

(shaking my head in disbelief)

Constitutionality has yet to be decided.

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Edward Coan 4 years ago

TheYetiSpeaks (anonymous) says… "Major setback for the Republican Fascists." Funny...I don't think the Repubs are making me buy health insurance....Do you even know what Fascist means?

Why would I say it if I didn't know what it means dumbarse.

Military-Industrial Complex = Republican Fascism

Ike bless us all

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porch_person 4 years ago

"If a federal court deems it unconstitutional, it will be unconstitutional for everyone, not just the states that put up the cost of the lawsuit." ---- staff04

Excellent point!! One which hasn't crossed the "minds" of conservatives.

I think you're right, staff04 .

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staff04 4 years ago

Maybe he's really not challenging the law because he thinks it wouldn't be prudent to spend money the state doesn't have on a lawsuit that AT LEAST A DOZEN OTHER STATES are willing to fight for Kansas...

If a federal court deems it unconstitutional, it will be unconstitutional for everyone, not just the states that put up the cost of the lawsuit.

I think the real reason the wingers are upset about this is that they know the new law will pass constitutional muster and have run out of ways to delay the effects of it.

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parrotuya 4 years ago

Waterloo...for Repugs? Will some think tank hurry up and hire David Frum? It really bugs me...

DOWn, baby, DOWn!

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Flap Doodle 4 years ago

What are they reporting over at CBS? "The poll, conducted March 29 through April 1, found that so far the president's efforts to build up support for the bill appear to be ineffective. Fifty-three percent of Americans say they disapprove of the new reforms, including 39 percent who say they disapprove strongly. In the days before the bill passed the House, 37 percent said they approved and 48 percent disapproved." http://www.cbsnews.com/8301-503544_162-20001700-503544.html

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LiberalDude 4 years ago

Thank you AG Steve Six. Good to see some common sense in the Kansas Government!

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kansasredlegs 4 years ago

@ roadrunner:
"We are forced to buy car insurance or pay a penalty.... Why shouldn't we be forced to by health insurance?" --- Apparently, you don't understand the argument, so please sit on the sidelines until you catch a clue. You make the point for the Republicans and their position regarding States' rights. Car Insurance: Is forced by states, but not all states require it ctiizens to buy it. There is no FEDERAL car insurance mandate. You're welcome.

" Who is it that makes me buy car insurance anyway? I'm assuming it's the State of Kansas." --- We have a winner!!! Roadrunner come on down and collect your prize.

"...if they are gonna fight so people don't have to buy health insurance, then I'm gonna fight to not buy car insurance..." No need to fight just move to Vermont. Remember it's a States' Rights issue, not a federal issue.

"..... What a bunch of idiots! We should all bear a small part to make it less expensive for everyone! Good job AG Six!!!!" No comment needed, see above.

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Flap Doodle 4 years ago

Will Dear Leader's illegal alien aunt have to buy health insurance now?

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porch_person 4 years ago

mr_right_wing,

(laughter)

Wonderfully clumsy post.

For one, every person who has the potential to get sick will be required to have health insurance. Since every person will get sick at sometime in their lives, (with the probability increasing with age), this means everyone. Not every person will or needs to drive a car. A bad simile.

Secondly, elected officials already have health insurance. They aren't being forced. It's a perk of the job. Health Insurance is a good thing. That's why companies offer it as "a benefit".

I can't believe all the conservatives who dislike being covered by health insurance. Must be a lot of ultra-rich conservatives lurking the boards these days.

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TheYetiSpeaks 4 years ago

"But if you break your leg and you are uninsured and unable to pay out of pocket, you will get expensive treatment at the ER, and those who are insured will foot the bill."

This statement is an over simplification at best, at worst its just flat out wrong. Its all a bit more complex than that. Furthermore, if it's the money you are so concerned about then I really fail to see your point. Under the new plan, are not the taxpayers going to foot the (even more immense) bill. Are we not the ones who will be paying with an increasing national debt. Are we not the ones who will pay with the loss of our country eventually. We cannot continue to hemmorhage money away with this constant introduction of unnecessary legislation.
The healthcare bill is a ploy for the Democrats in power to sustain their abilty to get reelected...nothing more. The only thing that changes is that we go further into debt.

Democrats healthcare bill = Repubs taking us to war and crying "Patriotism". Its all for the votes, man. Go to limitationsamendment.org for a solution.

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bennyoates 4 years ago

So many reasons to like this decision. We in Kansas need all the help we can get, what with our national/international image shaped by doctor-murdering terrorists, folks who believe in fairy tales about the world's creation running school boards, and pinhead anti-gay preachers.

So this is a step in the right direction. Time for KS and the US to join the civilized world by instituting health care reform.

Best of all, it irritates Shewmon, barrypenders, and similar losers. Life is good!

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mr_right_wing 4 years ago

"We are forced to buy car insurance or pay a penalty.... Why shouldn't we be forced to by health insurance?" = FLAWED reasoning.

Not one blind person has ever been forced to buy car insurance, but they will be forced to buy health insurance.

The only ones who will NOT be forced to buy health insurance is the elected officials that passed this.

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mr_right_wing 4 years ago

"We are forced to buy car insurance or pay a penalty.... Why shouldn't we be forced to by health insurance?" <--FLAWED reasoning.

Not one blind person has ever been forced to buy car insurance, but they will be forced to buy health insurance.

The only ones who will NOT be forced to buy health insurance is the elected officials that passed this. <>

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wolfy 4 years ago

YetiSpeaks says, "Because if I break my leg, it's not going to kill someone else in a head on collision." ----- But if you break your leg and you are uninsured and unable to pay out of pocket, you will get expensive treatment at the ER, and those who are insured will foot the bill. We must have full participation to make this work.

And Steve Six is doing the right thing here by not filing a frivolous lawsuit. There is no colorable constitutional cause here. Congress has broad powers under the commerce clause to enact laws regulating industries that have a substantial effect on interstate commerce. This is particularly true when a national solution to an issue is deemed necessary. I applaud General Six for his decision not to capitulate to political pressure.

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lawrenceguy40 4 years ago

frwent - so you are a socialist? A financial review at the ER would not be a bad thing. If you haven't taken care of business, you get basic care to keep you alive, but no expensive treatment. Everyone in this country is free to work hard and pay their way through life. Barry o believes that hard work should be punished. He believes individuals should rely on the state for everything. That way he and his liberal lackeys can reach their real goal, which is CONTROL over every aspect of YOUR life.

Sit back and mock. But when you are told when to go take a c##p by the local appointed Sewage Director, think of my warnings!

213 days left.

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Jake Esau 4 years ago

You can not buy auto insurance and still be on the good side of the law... don't drive a car. :-)

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Fred Whitehead Jr. 4 years ago

Kudos to Judge Six. I am sick and tired of having to pay for those who refuse to take care of their health and then go to the emergency room with the sniffles and guess who gets to pay for their failure to provide for their health care??

Yup. All of us who have insurance and pay for it. I am firmly with the plan that all be required to have health insurance.

Or should we arrange with the emergency rooms to do a financial review of patients and those who are not covered are shown the back door, out to the street where you are to just suffer and/or die?

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TheYetiSpeaks 4 years ago

"We are forced to buy car insurance or pay a penalty.... Why shouldn't we be forced to by health insurance?"

Because if I break my leg, its not going to kill someone else in a head on collision.

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TheYetiSpeaks 4 years ago

"Major setback for the Republican Fascists."

Funny...I don't think the Repubs are making me buy health insurance....Do you even know what Fascist means?

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roadrunner 4 years ago

We are forced to buy car insurance or pay a penalty.... Why shouldn't we be forced to by health insurance? Who is it that makes me buy car insurance anyway? I'm assuming it's the State of Kansas. Hmmmmm.....if they are gonna fight so people don't have to buy health insurance, then I'm gonna fight to not buy car insurance..... What a bunch of idiots! We should all bear a small part to make it less expensive for EVERYONE! Good job AG Six!!!!

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porch_person 4 years ago

Solomon,

(laughter)

The Health Care Reform Bill is constitutional under the Commerce clause, the Welfare clause and the Sovereignty clause of the United States Constitution.

I laugh at conservatives who don't know that.

(laughter)

I laugh at conservatives who follow Sarah Palin, who doesn't know what a Vice-President does.

I laugh at conservatives who make Michael Steele, Chairman of the Republican Party, apologize for calling drug addict Rush Limbaugh, "ugly", "incendiary", and "entertainment".

I laugh at conservatives who seriously thought Barack Obama was not an American.

I laugh at conservatives who thought a health care reform package was "socialism".

I laugh at conservatives who thought that the health care reform package was going to result in "death panels" to kill Grandma.

I laugh at conservatives who thought that the health care reform package was going to "take over" the industry.

I laugh at conservatives who think that Glenn Beck, the man who wondered if Barack Obama is the Anti-Christ, is sane.

I laugh at conservatives who think Rush Limbaugh isn't "entertainment".

I laugh at conservatives who think Iraq had weapons of mass destruction in 2002.

I laugh at conservatives who think Iraq had anything to do with al Qaeda.

I laugh at conservatives who think Iraq had anything to do with 9/11

I laugh at conservatives who think the current economic conditions had anything to do with Barack Obama.

Etc, etc, etc.

(laughter)

You guys give me plenty of "grist for the mill".

(laughter)

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BigPrune 4 years ago

Of course he's not going to challenge it. He's a spineless coward. To challenge ultimately effecting the second most powerful person in the country Kathleen (I never knew an abortion doctor I couldn't shake hands with) Sebelius.

I wonder what all the old people will do? This health plan is perfect. Not only will it be a huge pain to use, but it will weed out the weaklings of society (the old people). THAT'S how they'll save Social Security! The old people will die earlier.

Such a perfect devious plan devised by the payola Democrats, Hitler would be proud.

So....put that in your hemp pipe and smoke it you Socialists, because it's true.

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MyName 4 years ago

@yme:

People are taking the piss out of Rush/Palin/Beck et al. because they seem to be the "brains" of the conservative movement ATM, and that is a sad sad thing. Especially when you compare them to people like Buckley, Reagan or Thatcher. It's not about "shooting the messenger" it's about pointing out that the Scarecrow that is left of the conservative movement has no brains and needs to ask the Wizard to fix that.

And I love how you make the blanket statement that Six's decision "seems perfectly political", fail to back that up with either facts or logic to show why you reach that conclusion, and then complain about other people making unsupported statements in the next sentence. Are you irony impaired or something?

The AG did his job, which is to look at the statute, compare it to State and Federal constitutional law, and come up with his interpretation of whether it was constitutional or not. He came to the conclusion that it was constitutional. Your suggestive course of action isn't to look at the actual case law, but is instead to just throw lawsuits up there and see what sticks. This strikes me as much more about politics than the decision to not act unless you can clearly see that there is a Constitutional issue.

In short: your side lost fair and square, stop whining and start planning on how to make healthcare better instead of asking for another round of trench warfare in the court system because you didn't like the outcome.

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Eybea Opiner 4 years ago

Porch (tee hee) You say (tee hee) That this bill (tee hee) is constitutional. (tee hee)

Under what article, (tee hee) do you think, (tee hee) is the federal government (tee hee) empowered to force me (tee hee) to purchase any particular product?

By the way, your (laughter) is really, really stupid.

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porch_person 4 years ago

TomShewmon,

There's a good chance that the challenge to the health care reform package will never even be heard by the Supreme Court.

This is a no-brainer, legally.

=====

Meant to ask you Tom,........

What's all this about the disintegration of the Republican Party?

http://www.cnn.com/2010/POLITICS/04/02/michael.steele.fallout/index.html (remember, capitalize "politics")

(laughter)

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Tom Shewmon 4 years ago

ObamaCare is unconstitutional and will be overturned by the supreme court.

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SettingTheRecordStraight 4 years ago

KS Manimal,

The difference is asking the state to defend its citizens from new and unnecessary taxes, government bureaucracy, and poor healthcare outcomes - while the other is asking that local school districts not seek new and higher taxes to fund additional government spending.

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Edward Coan 4 years ago

Major setback for the Republican Fascists.

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porch_person 4 years ago

yme,

(laughter)

You're wrong.

(laughter)

"Putting the well-being of the state before politics? If he were Republican you could make that argument. His finding nothing unconstituional seems perfectly political. " --- yme

So if Attorney General Steve Six was Republican and declined to challenge the health care reform, that's ok. He'd be doing it for the "welfare of the State".

(laughter)

Because he's a Democrat, he's being "political".

Gotcha!!

(laughter)

The Health Care Reform package is constitutional. People who know how to spell "constitutional" will be happy to inform you as to why but somehow I don't think you're receptive to such knowledge.

(laughter)

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63BC 4 years ago

Fourteen AGs and counting, including at least one Democrat, have challenged this law.

Six always ends up doing whatever the Democratic Adminstration wants...right after saying how independent he is.

Even independents aren't buying that nonsense anymore. They've seen what Democratic control means.

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yme 4 years ago

Putting the well-being of the state before politics? If he were Republican you could make that argument. His finding nothing unconstituional seems perfectly political. And please, can someone here make a liberal observation without whinning about Glenn Beck, Rush or Sarah Palin. No you can't because you have no facts, just attack the messengers. If you think this is not mandatory insurance you are nuts. This will save no money for the consumer, will increase the debt mulitple times over and not solve the actual problems it is designed to solve. I can figure that stuff out simply by reading the bill and applying logic, which is something you obviously can't do. And by the way, I don't listen to Beck, Rush, O'Reilly or any other commentor. I take the time to read and make my own obervations, not just spout someone else's talking points, which is all any of you have done. Not everything is about race, greed or big business. Sometimes it is simply about policies that work, and there are virtually none in this crock of a bill. Regardless of your thoughts, you can't come out with Six being anything but political on this issue. Had he really been non-political he would have said they would study the issue and study complaints from other states. You folks fan the flames just like you accuse all on the right of doing. And the use of TBer, do you have similar slurs for everyone who thinks differently from you. You say you dislike Beck and Rush for stirring things up, but you are doing the same thing, but I guess since it is in the name of liberalism it is ok

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porch_person 4 years ago

A no-brainer. I'm sure there was some "pressure" to join but this decision didn't take much time.

Thank you, Steve.

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KSManimal 4 years ago

Aren't these folks who want Kansas to sue Uncle Sam the same folks who had a recent tantrum.....wanting to legislate that one government entity (school districts) could not use tax dollars to sue another government entity (the state legislature)?

What's the difference?

If these folks would turn off Glenn Beck long enough to see what's in the health care bill, they'd see no one is requiring them to buy insurance. They'll just pay less tax if they do. I guess they've forgotten McCain's campaign promise of a $5,000 tax break for buying health insurance. Or, maybe that sort of thing isn't a problem when a white guy wants to do it.

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Hektor 4 years ago

Duh. Six has better things to do than to waste time on something as ridiculous as this.

I thought the TB'ers were against judicial activism anyway?

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