Wally

He may think that the people chosen were experts in constitutional law, but the moderator definitely is suspect. He does not believe the US Constitution’s Second Amendment is an individual right, for one thing.

Please have me added to the list of people who would be outrageously happy to debate the constitutionality of the healthcare reform bill, and expect me to be well-rehearsed on the topincs for discussion. Also, if you want to see some of my constitutional positions, please check out my political blog at http://www.natelusk.wordpress.com.

It also is not true that all the panelists said that the act was “unquestionably constitutional.” I was the only one who advanced that view, although it’s accurate that everyone thought the lawsuit was a long shot. Much of the program was spent providing simple facts, such as how the health care act works, or what the Court said in a certain case, or why standing and ripeness might be an issue in the current litigation.

During the program, the views of those supporting the FL suit were carefully laid out and discussed. Several panel members played Devil’s Advocate, so it was a spirited discussion. We also had audience members submit questions, some of which were implicitly critical of the position taken by one or more panelists. In advance of the program, we posted a lengthy law review article on the UW Law School site, by the 2 attorneys representing Florida in the case, along with an opposing piece Jack Balkin. Students and audience members were directed to the site by e-mail announcements.

This was NOT an academic conference, but rather reaction to a newsworthy event by academics whose views largely were unknown in advance. Was it a perfect “debate”? Of course not, as debates are always better with debaters presenting opposite points of view. It was not even meant as a “debate” between opposing sides, but was billed as a discussion, a panel, etc. But it was a good faith effort to discuss a timely issue in a way that aired the various viewpoints. And I’m sure it will be but one of many discussions here, and you can be certain that the foes of the act will be well represented.

Stewart Jay
University of Washington

Not being a constitutional scholar, I have a tendency to read the 10th Amendment as 28 words that should need no interpretation. I would believe anyone having passed the 6th grade would be able to understand:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

If you can find the words, health, insurance, doctor, or hospital in the body of the US Constitution, then maybe the Federal government can look into the issue. If not, it belongs to ths States and the people.

Gordo: On a more substantive note:1. Unlike the “collective rights” view of the 2nd amendment, which rested upon a very thin thread of the Miller decision, an expansive view of federalism, even after Lopez, Morrison, and SWANCC, is solidly ensconced in post-1937 case doctrine.2. The “mandate” is, in fact, not a mandate — it’s a tax penalty.Sort of like when I want to take out my retirement savings before I’m 59 1/2.

Ah, but your creation of a retirement savings account was a 100% voluntary commercial activity, and the penalty in this case is levied because you reaped benefits for engaging in that voluntary activity and failed to wait until you were entitled to reap those benefits without penalty.

In this case, the buying of health insurance under the statute is a 100% involuntary commercial activity, and the fact that the enforcement of the penalty–as it is named in the statute–is given over to the IRS doesn’t make it a tax. It just means they gave enforcement to the IRS.

If you’re going to make a counterargument that, “sure it’s voluntary, you can always not buy the insurance and pay the penalty,” let me just point out that that’s like saying compliance with the posted speed limit while driving is “voluntary”–hey, you can always just pay the fines.

I’ve read a lot of heavy reliance by supporters of the Democrat Populace Control Act of 2010 (aka, Obamacare) on the Raich decision in trying to read the USSC tea leaves. Even J. Stevens, writing for the majority in Gonzalez v. Raich, writes the following:

“(c) Respondents’ heavy reliance on Lopez and Morrison overlooks the larger context of modern-era Commerce Clause jurisprudence preserved by those cases, while also reading those cases far too broadly. The statutory challenges at issue there were markedly different from the challenge here. Respondents ask the Court to excise individual applications of a concededly valid comprehensive statutory scheme. In contrast, in both Lopez and Morrison, the parties asserted that a particular statute or provision fell outside Congress’ commerce power in its entirety. This distinction is pivotal for the Court has often reiterated that “[w]here the class of activities is regulated and that class is within the reach of federal power, the courts have no power ‘to excise, as trivial, individual instances’ of the class.”

I think we may be more surprised than we imagine on how this falls out. Conventional wisdom has been that this will come down to Anthony Kennedy. It just may be that Stevens and others on the Court’s liberal wing will surprise us.

It clearly does not define who shall live or die according to their ability to pay for or to have access to health care. It does not guarantee an equal playing field for all.

It does give every citizen certain rights, which does not include health care or insurance. It protects our freedoms and liberties from an overzealous government. It establishes a military and provides for the use of national guards to secure our nation from its nemies. And, yes, it provides for fair interstate commerce, which has thus been abused by extravagant outlier interpretations of this power of government.

Obamacare goes far beyond constitutional limits on our federal republic form of government. Those who believe they should have welfare, education, housing, food, transportation, and other needs they may require should get states and fellows citizens of their states to provide them with this, through their elective process.

Gordo: It’s a shame that 45,000 people have to die every year, and hundreds of thousands be unnecessarily sick and in pain, because it is alleged that it is unconstitutional to do much about it.But I guess that’s real life, not the constitution.

Too bad those folks aren’t smart enough to walk into an emergency room where they will be treated without charge if they cannot pay. Nice try Bozo. I can hear you whining now “millions of people dying every single minute…”

Let’s say that Congress decided that legal representation and advice is so valuable that it constitutes a fundamental right, even for persons who are not accused of a crime. Therefore, all attorneys will bill a government-administered insurance agency for the services they provide, rather than billing their client. Attorneys’ pay would be subject to the whims of a government-appointed panel, and would obviously be a fraction of the amount billed.

1) Under this system, would the quality of legal representation change? For the better or for worse?
2) Would there be more or less legal action under such a system?
3) Would there be better legal outcomes under this system?
4) Would the professional satisfaction of attorneys change? For the better or worse?
5) Would anyone be willing to practice law under such a system?

Making health care and health insurance more affordable for more people is a worthy goal. My gripe with ObamaCare (and Mr. Obama has made “health care reform” his signature issue, so the name seems adequate even if it is used as an epithet) is that it attempts to do so by making the federal government liable for a larger share of the costs of health care in this country.

ObamaCare turns health insurance companies into public utilities. These privately-owned, often publicly-traded companies are required to offer specific plans, as set forth in the legislation; they are only allowed to make a prescribed profit; they are required to offer insurance to all comers; they are not allowed to cancel insurance except for nonpayment of premiums or fraud on the part of the insured; and can only charge a certain prescribed amount for said insurance. For instance, a middle-aged diabetic morbidly obese smoker can only be charged 4.5 times as much for insurance as a 32-year-old vegan marathon runner, even though the fat smoker is going to use far more than 4.5 times as much health care in a month as the runner will in a year. The insurance companies have been removed from the business of calculating risk to individuals, and are relegated to administering prepaid health plans under close government supervision and under the constant threat of having their prescribed profits decreased at the stroke of a pen when costs go up. This seems to be a massive government appropriation of private capital – if I owned stock in insurance companies, I would be livid.

Parenthetically, why are the young, who are usually at the low end of their earning power, expected to subsidize the middle-aged, who are at the peak of their earning power? Social Security relied on that model, and is quickly headed toward insolvency – do we really want a repeat performance with another entitlement program?

Yes, ObamaCare includes subsidies to people who make less than 400% of the poverty level, and specifies that those people can only spend up to a certain percentage of their income on insurance. But, those subsidies do not come from a magic money tree in Washington DC. They come from the pockets of taxpayers, either directly or through future interest payments on borrowed funds. ObamaCare, as some Democratic leaders recently admitted, is at least as much about income redistribution as it is about health care.

Furthermore, making health insurance an entitlement is not the same thing as making health care an entitlement. Government-issued insurance, including Medicaid (through which 16 million people will supposedly get insurance under ObamaCare) often pays less than the cost of providing services. Specifically, I know that Pap smears and mammograms cost more to provide than Medicaid reimburses. It is pretty hard to find a doctor who will accept some government plans – the Mayo Clinic, for example, recently stopped accepting Medicare patients at its Glendale offices because they were losing millions of dollars a year by treating those patients. Since very few physicians are willing to, essentially, pay someone for the opportunity to work, few physicians will be willing to accept those newly insured people, which will lead to long waiting lists or higher costs. It cannot be otherwise.

ObamaCare, at great cost, does not solve the problems it was intended to solve, unless those problems have to do with taxpayers being allowed to keep too much of their own money.

Finally, I wish to emphasize Fourier’s transformative (subtle math joke) comment above about lack of health insurance not being an adverse factor in health outcomes.

Just a minor nitpick: It is perfectly legal to own a car and even drive it without insurance. You just can’t drive it on public roads.

– AJ

Michael Lee: A couple of comments: No state requires every person to purchase auto liability insurance — if they don’t have a car. Many states require a person who owns/drives a car to demonstrate financial responsibility. Quite a few states allow for alternatives to insurance — a deposit with the state treasurer or a bond. The Health Care Bill could have allowed such an alternative scheme. A combination of a high deductible insurance policy plus a bond would allow some individual freedom to opt out. However, I am certainly hoping that this mandate will be found to be beyond the reach of the federal government. I do wish some states had tried some different health insurance schemes as experiments in federalism. I enjoy very much the range of opinions expressed here!

Cornellian:
If banning discrimination based on pre-existing conditions is only feasible if everyone’s in the pool (because of the self-selection bias) then why isn’t the individual mandate constitutional as a “necessary and proper” measure as that term is used in McCullough and in Raich?

I’m neither a lawyer or a scholar, but I would guess that the mandate meets the necessary part, but at least arguably fails the properness test. If so, then it is not “necessary and proper”.

I have only a cursory knowledge of the McCullough decision, but it seems to me Marshall largely adopted Hamilton’s view of the N&P clause, as expressed in his “Opinion as to the Constitutionality of the Bank Of the United States”, (1791),

http://avalon.law.yale.edu/18th_century/bank-ah.asp

The power of a sovereign to erect a corporation, while not an enumerated power of the federal gov’t., does indeed seem like an ordinary power of such a gov’t. and is therefore proper.

The power to require participation in a particular market, or face a penalty seems rather more dubious, to me, in that regard.

Second, it is not true that an individual mandate is required to cover pre-existing conditions. HIPAA has required that states establish a mechanism for insuring the uninsurable for over a decade. The majority of states do this via high risk pools, which have worked well. Others designated an insurer of last resort. At present, problems with insuring pre-existing conditions mostly stem either from states refusing to follow the law and fund the required insurer pools adequately or from people who refuse to purchase insurance and then complain about having to pay the higher rates the risk pools charge when they want someone else to defray their major medical bills.

Third, it is fairly clear that ObamaCare is inferior to existing models of health care reform because it expands third party payment, and people do not spend other people’s money as carefully as they spend their own. In health care, savings from having people spend their own money range from 15 to 30 percent in carefully done studies. There are no discernable effects on health. For people on Medicaid, savings are in the 20% range and health improves because Medicaid red tape keeps people from accessing the care that they are theoretically entitled to.

A superior way forward (because it is both less expensive, provides superior medical care, and can be tailored to individual needs) would be to reform Medicare and Medicaid so that they function more like private insurance and to encourage the purchase of individual policies by equalizing the tax treatment. For a beginning discussion of this see http://www.econlib.org/library/Columns/y2009/Gormanhealthinsurance.html

As for the absurd quibbles about calling the new law ObamaCare, people who dislike the name should supply an alternative, one that is descriptive of the exceedingly expensive, wasteful, and ineffective top down “reform” this new law is.

April 1, 2010, 7:22 pm

Had almost this exact conversation with a law prof in 2004. He thought Miller had settled the issue; no private right to own a gun. I told him the 2nd A has NOTHING to do with duck hunting. It’s the ultimate safety valve. It was designed to ensure rebellion was always possible. The police and the military are overwhelmingly Red and the guns are in Red states. There is no way Red country is going to give Blue country its guns, no matter what the Supreme Ct says. Or, as Bork observed, any decision (Dred Scott) it takes a civil war to reverse is probably a bad one. I think judges SHOULD think very carefully before they issue an order which will not be obeyed . . . but then O’Connor seems to have actually believed she “settled” the abortion question with Casey.

But what is it about the personal mandate which upsets you so? Why all this talk about going to Court? Is it just “the final straw?” I just don’t get it — and I am speaking of the reality-based folks so death panel folks just please ignore me.

Bc it offends me to purchase something,and subsidize something that I will not use. When buying my own insurance, I have always had a “catastrophe insurance” plan w/ an $8,000 deductible for the occasional broken bone or appendicitis, but otherwise I use non-western medicine, homebirth (not covered in my state, so I pay oop), etc. I do lots of research and we choose very healthy options. As I understand, such plans that have high deductibles will not be allowed.

Furthermore, I do not want to pay for abortions.

So let me ask you, do you think that there is a huge difference in character between a government — any government — prohibiting to do X versus compelling to do Y?

My own response so far is that I don’t see much, practically.

I’m also puzzled that some people — such as yourself, Mike — are upset by being compelled by the individual health insurance mandate and yet accept being compelled to pay income tax at all. What’s the difference? Why aren’t the Republicans asking to rollback the IRS? I just don’t get it.

Furthermore, people are compelled by government buy and use something every day: they wear clothing. Why do you object?

Last year, my daughter asked what a “president” was. I told her (paraphrased): “The president is our leader, but he’s not my boss. He can’t tell me what to do.

“That’s the difference between a president and a king or a dictator. A king (in the old days at least) had ultimate authority; he could tell you what to do, and if you didn’t do what he said, could have you punished. A president can’t do that. He’s limited to doing only certain things. He doesn’t have the power to tell you to do things.”

Seems stupid now.

– Alaska Jack

PS – Not singling out Obama here. All three branches are in agreement, as far as I can tell. Our conversation just happened to be about the presidency.

David Sucher: I will ask a serious question for serious people who oppose Obamacare, which excludes the black helicopters used as ambulances crowd etc etc.To wit:What is so offensive about the zeitgeist of the individual mandate? There seems to be a whole bunch of disliked elements which include “unconstitutionality” and a broader sense that the mandate is unethical, unfair, immoral and so on.Putting aside the gamesmanship of calling it “unconstitutional,” what really bothers you?I can see that reasonable people can disagree and that plan may be unwise economically, or bad public policy and so forth. Yes it is a political compromise and imperfect. (And I am not wild about the specifics either but grudgingly I am for it.)But what really bugs people? It’s preposterous (to me) that people are freaked out — and yes that is what it is — because the Feds mandate health insurance when the Feds also prevent people from buying machine guns and marijuana. And states mandate car insurance. So yes there is lots of government intrusion in our lives and some is dumb.But what is it about the personal mandate which upsets you so? Why all this talk about going to Court? Is it just “the final straw?” I just don’t get it — and I am speaking of the reality-based folks so death panel folks just please ignore me.

I think the differences between car insurance and the individual mandate are two:

1. you don’t need to buy car insurance unless you have a car and,
2. you only have to buy liability, not comprehensive or collision. You would only need to buy comprehensive or collision if you financed the car, and the lender required it to protect their interest in the vehicle. The mandatory purchase of liability is to protect others in case you hit them. With the individual mandate, it’s to protect yourself. Well, what if you don’t want to protect yourself? Shouldn’t that be a choice?

I noticed on your web page that you are an author. Well, what if you were forced to buy plagiarism insurance with premiums exceeding $100k per year? Could you have started your business with such a requirement? Well, young people 26+ years old, may want to scrimp and save every nickel to become the next Google, Microsoft, Hewlett Packard. And why are these young people forced to buy insurance? So, smokers can get lung transplants, obese people can get gastrointestinal surgery, so drug users can get treatment, etc., as mentioned in another post? It’s about freedom.

Through this law I am required to select a private entity to give my labor to or face a penalty. In the old days of slavery a slave was required to work for a private entity or face some form of penalty from that private entity. Now I am required to labor for a private entity and if I choose not to, I face a penalty from the government rather than the private owner.

So from my perspective I have been enslaved by the government itself. It requires that I labor for some private entity under penalty of law. The only significant difference between this and old style slavery is that I get to select my private master and only part of my labor must be for him. Depending on my medical condition the amount of that labor can be small or large according to the whim of the available choice in masters.

If such a thing is allowed to stand what is to stop the government from mandating that I purchase a new car every year under the premise that new cars will get better mileage and reduce emissions. And in so doing improve the health of everyone.

We need to elect people that understand that the purpose of the commerce clause is to prevent individual states from enacting barriers to free trade between the different states; not to wield it as a means of forcing citizens and the states into doing what they think is “good for us”.

David Sucher: I will ask a serious question for serious people who oppose Obamacare, which excludes the black helicopters used as ambulances crowd etc etc.To wit:What is so offensive about the zeitgeist of the individual mandate?There seems to be a whole bunch of disliked elements which include “unconstitutionality” and a broader sense that the mandate is unethical, unfair, immoral and so on.Putting aside the gamesmanship of calling it “unconstitutional,” what really bothers you?I can see that reasonable people can disagree and that plan may be unwise economically, or bad public policy and so forth. Yes it is a political compromise and imperfect. (And I am not wild about the specifics either but grudgingly I am for it.)But what really bugs people? It’s preposterous (to me) that people are freaked out — and yes that is what it is — because the Feds mandate health insurance when the Feds also prevent people from buying machine guns and marijuana. And states mandate car insurance. So yes there is lots of government intrusion in our lives and some is dumb.But what is it about the personal mandate which upsets you so? Why all this talk about going to Court? Is it just “the final straw?” I just don’t get it — and I am speaking of the reality-based folks so death panel folks just please ignore me.

Personally, I have a high-deductable “catastrophic care” policy, and pay for routine doctors appointments out of pocket. My understanding is, this will not qualify as an acceptable plan under the new law, and I will be penalized for it, and possibly my insurance company will stop offering my current plan.

I’m HAPPY with what I’ve got, and my ability to get medical care is not at risk (nor is my retirement savings). So why should I be penalized for doing what I believe is a responsible job of managing my own health care?

dan: Using the term “Obamacare” signals that you do not intend to present a serious argument but instead are interested in rhetorical scare tactics and divisiveness.</P

You mean, like how people who called Obama “Barack Hussein Obama” before the election were engaged in rhetorical scare tactics and divisiveness. Funny how we never heard any more of that smear after he took the oath of office.

Steve: Tenth Amendment

This is a really funny sentence. People are free to believe the Constitution should be interpreted in any number of ways, but can there really be a “flagrant” violation of a provision as toothless in practice as the Tenth Amendment?

This is a funny idea: that the tenth amendment would have “teeth” that it could use to “enforce” itself. The truth is that the entire Constitution has no “teeth”; the only thing that could potentially prevent Unconstitutional Things from happening is the balance of power between the executive, legislative, judicial and state powers, occasionally checked by voters and sometimes juries.

The Constitution is just a piece of paper. On it is written a valiant attempt to describe what’s needed to preserve liberty, but if the people in charge of government (including the people themselves) choose to disregard the document, there’s nothing within the power of a piece of paper to keep it from happening!

The term “Obamacare” has been used — exclusively by conservatives — to describe the following:
- all versions of the House bill;
- the Senate bill;
- the public option;
- the reconciled version of the Senate bill;
- death panels
- anything else Rush and Hannity want to demonize.

Thus, a post declaring “Obamacare is unconstitutional” is just sloppy. If I made that statement in my con law class, the professor would have driven me out of the class with a barrage of derision. If I said it in court, I would expect a judge to do the same.

If you want to be taken seriously, try using a precise term that says what you mean. Maybe “the individual mandate is unconstitutional.” Oh, but wait — that wouldn’t be so divisive, so it wouldn’t serve the apparent purpose of this post.

That. I’m really tired of this “Obamacare” b.s. Analysis in fact has suggested that given his druthers (or his consigliere’s druthers), Obama would have supported something a lot less expansive.

This law is a result of Senate Democrats with an edit by the House Democrats. The childish obstructionist measures of the Republicans (over a year taken, repeated attempts to get Republicans involved, Republican amendments accepted, and like children talk of “ramming” through the bill etc.) and conservative nature of the balance of the Democrat coalition in fact required a bill that even in some more sane Republican controlled state legislatures would in various ways be deemed at worst “centrist” in character.

But, we again the “Obamacare” line. I’m more inclined to call it Pelosi/Reid care … they have as much or more to do with getting the thing passed.

To wit:

What is so offensive about the zeitgeist of the individual mandate?

There seems to be a whole bunch of disliked elements which include “unconstitutionality” and a broader sense that the mandate is unethical, unfair, immoral and so on.

Putting aside the gamesmanship of calling it “unconstitutional,” what really bothers you?

I can see that reasonable people can disagree and that plan may be unwise economically, or bad public policy and so forth. Yes it is a political compromise and imperfect. (And I am not wild about the specifics either but grudgingly I am for it.)

But what really bugs people? It’s preposterous (to me) that people are freaked out — and yes that is what it is — because the Feds mandate health insurance when the Feds also prevent people from buying machine guns and marijuana. And states mandate car insurance. So yes there is lots of government intrusion in our lives and some is dumb.

But what is it about the personal mandate which upsets you so? Why all this talk about going to Court? Is it just “the final straw?” I just don’t get it — and I am speaking of the reality-based folks so death panel folks just please ignore me.

Octavian: How ironic that this nation successfully led the free world during the Cold War against a totalitarian government, only to see the Usurper morph our federal government into the very same totalitarian government that was vanquished 20 years ago.

I guess every other western developed country government is “totalitarian” by your mindset.

In other words, you speak hogwash.

yankee: I often hear this said, but I don’t think it’s quite right. There are two major differences between a tax credit/deduction for X and a tax on not-X:1) If there’s a tax break for X, it only benefits you up to the amount of tax you would otherwise owe. By contrast, a tax on not-X would apply whether or not you otherwise owed tax. The only way to make them equivalent is to define the “tax on not-X” in an almost absurdly gerrymandered way.2) Many common deductions or credits would be virtually impossible to implement as taxes. How would you define a tax on not owning a home that produced precisely the same results as the home mortgage interest deduction? You’d have to define the “tax” on non-homeowners in terms of the amount of mortgage interest they’re not paying; maybe there’s some economic wizardry that will let you do that, but it would be an exceptionally complicated matter.

Well, we already PAY farmers to not grow certain crops or raise certain animals, so why not do the same on the other side of the ledger? :-P