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Is Obama Care Unconstitutional? - Part Deux:

David Rivkin and Lee Casey are back on the WSJ editorial page, arguing once again that current health care proposals are unconstitutional. Specifically, they argue that an "individual mandate" would exceed the scope of Congressional power under current precedent. Further, they argue that this limitation cannot be avoided by using the taxing power to impose a tax on those who fail to purchase a qualifying health care plan.

As with their last effort in this vein, I am unconvinced. I agree with them that an individual mandate would, in many respects, "expand the federal government's authority over individual Americans to an unprecedented degree," but I disagree that such a mandate would be unconstitutional under current precedent, particularly if adopted as part of a comprehensive health care reform plan.

There is a strong temptation to believe that every onerous or oppressive government policy is unconstitutional Were it only so. Even were the federal government confined to those powers expressly enumerated in the text, it would retain ample ability to enact many bad ideas into law, and current precedent is far more permissive. Opponents of current health care reform proposals should defeat them the old fashioned way, through the political process, and not depend upon salvation from the courts.

Stevie Miller (mail):
Maybe Obama Care is not unconstitutional.

But you sure could make an argument that forcing people into a mandatory insurance system is.

Btw, does anybody know if religious objections will be honored, as with opting out of mandatory service requirements.

Are the Amish excluded from having to pay in to cover other people's medical needs, for example? Can I have religious objections to joining an insurance pool that performs procedures I object to?

What if, like with getting out of the liability auto insurance, one can show a pool of money saved up to cover personal medical needs?

It seems like crazy force, or fines, to enforce this thing would make the mandatory-ness D.O.A.
9.18.2009 11:57am
Stevie Miller (mail):
Somehow, I think a religious opt-out option could be introduced here, necessating court involvement once the political process fails to protect these individuals from the greediness of the masses who want others to pay for their choices.
9.18.2009 11:59am
pbf (mail) (www):
Jon -- you're not being sufficiently strong in your skepticism. The argument Rivkin and Casey are making is that the individual mandate is "profoundly unconstitutional" under the commerce clause. I'll leave to you the analysis, but there's is hardly an argument worth giving the credence of spreading under the banner of being "skeptical" of its merits.
9.18.2009 12:00pm
RPT (mail):
"the greediness of the masses who want others to pay for their choices."

Sounds like the teabaggers complaining about the D.C. Metro, after their meeting on public grounds protected by public law enforcement, etc. Nothing says "greed" like illness.
9.18.2009 12:01pm
pbf (mail) (www):
The solicitude shown for religious objectors is rather remarkable given its concomitant lack of solicitude for the uninsured and those fighting insurance companies for care that should be covered.

It's particularly remarkable since "the Amish religion does not forbid its people to seek modern medical care. When necessary, the Amish can have surgical procedures, dental work, anesthesia, or blood transfusions. Organ transplants are permitted, except for the heart. The Amish believe the heart is the soul of the body. (Exception: Pediatric patients who have not been baptized can receive a heart transplant.) http://tiny.cc/HGCtm

Some Amish may reject insurance, but then that means all of the insured are bearing the costs of their catastrophic medical conditions. Really, before we go all bleeding heart on the Amish, let's be up front -- you don't, like Adler, like a public option and an insurance mandate on political grounds. Let's not go constitutionalizing your positions.
9.18.2009 12:08pm
kris (mail) (www):
the point you're missing and the irony is that the guys screaming "unconstitutional" don't believe Marbury v Madison is good law and that it is unconstitutional for SCOTUS to strike down legislation as unconstitutional.
9.18.2009 12:09pm
Jeff Dege (mail):
The only provision I can see that authorizes the federal government to mandate that individual citizens buy anything is the militia clause.

Congress clearly has the authority to require every able-bodied man to buy or otherwise obtain for himself a firearm that meets whatever requirements that Congress might set.

I can't see how that might be extended to health care, though.
9.18.2009 12:10pm
Rich B. (mail):
You miss the purpose of these obviously poorly-reasoned editorials. They are not intended to convince readers. Rather, they intended to permit Republicans in competitive districts to say, "While I personally feel that health insurance reform would be passed, I am unfortunately forced to vote against it, due to some serious Constitutional deficiencies pointed out by noted experts in the Wall Street Journal and Washington Post. I await the day that a law that would not be struck down will be put forward so i can support it . . ."
9.18.2009 12:14pm
einhverfr (mail) (www):
I think the obvious issue is that opponents of Obamacare aren't offering compelling reform alternatives. The debate has become over whether our system needs fixing rather than how to fix it.

I personally think the solution is through stronger consumer protection laws and state that any insurance which has a nexus to interstate commerce must include certain consumer protections. These include transparency about the conditions under which reimbursement will be made. Currently this is a big problem. I say: Require publicaton of insurance codes and maximum rates, as well as a list of at least 3 services (or all services if less than three) that come under those codes. States could then follow this up by requiring estimates for nonemergency care which would require the provider to give an estimate including all insurance codes so that the consumer at least has the option of knowing whether the insurance will cover a procedure through a given provider before having it done. We have these laws regarding auto mechanics. Why not regarding medical care?

I know this isn't a popular view on a libertarian blog but insurance is one of those industries that requires fairly intrusive regulation in order to make work in anything resembling a market economy.
9.18.2009 12:16pm
Malvolio:
I know this isn't a popular view on a libertarian blog but insurance is one of those industries that requires fairly intrusive regulation in order to make work in anything resembling a market economy.
I wouldn't worry about its being an unpopular view, I would worry about its an unsupported view. I mean, why would insurance be particularly different than any other product or service?

Every company depends on its reputation and if one gets a reputation, deserved or not, for treating its customers poorly, it will go out of business. Heavy regulation tends to interfere with that dynamic, since since it creates a huge barrier to entry against competitors (I won't say "Comcast" or "United", but feel free to think of them).
9.18.2009 12:39pm
Stevie Miller (mail):
Somehow, I think a religious opt-out option could be introduced here, necessating court involvement once the political process fails to protect these individuals from the greediness of the masses who want others to pay for their choices.

Sounds like the teabaggers complaining about the D.C. Metro, after their meeting on public grounds protected by public law enforcement, etc. Nothing says "greed" like illness.


Naw... that costs are small potatoes compared to Grandmama's scoot around wheelchair, assisted living apartment, Medicare prescription benefits ... all paid for by the taxpayer, because her doctor/son and his wife DESERVE those annual cruises and if the taxpayers will pay for Grandmama's care... why not?

Somehow, I don't think the Amish grandmama's who had their babies at home and whose offspring care for them in old age at home are greedy in their medical needs. And they definitely don't want you paying for them.

There's got to be a religious, independent opt-out in their somewhere...
9.18.2009 12:44pm
pbf (mail) (www):
". . . if one gets a reputation, deserved or not, for treating its customers poorly, it will go out of business. . . ."

This is a bunch of stupid, idealistic nonsense. And if it's true, what do the insurance companies that treat their customers well have to fear from a public option? Especially if it's a public option only for the uninsured?

Of course, as the commenters above point out, what do I expect from a bunch of libertarians?
9.18.2009 12:49pm
einhverfr (mail) (www):
Malvolio:

I wouldn't worry about its being an unpopular view, I would worry about its an unsupported view. I mean, why would insurance be particularly different than any other product or service?


There are a couple problems specific to insurance or any other service which provides a contract to pay money under specific circumstances. These involve:

1) How do you ensure that there is enough money to cover spikes in demand, for example medical insurance in the case of a terrorist attack? We solve these through a number of ways including denying bankrupcy relief to insurers, requiring maintenance of certain amounts of assets, etc.

2) There is a fundamental interest in dodging the contract or restricting payouts as much as possible. This is less developed in consumer protection and we tend to rely on contract law exclusively. While this works fairly well for most kinds of insurance, medical insurance poses some unique problems here.

Now, medical insurance in its current form poses a number of unique problems among insurance services. First, while life insurance contracts tend to be fairly short and easy to read, medical insurance contracts tend to be far longer, and incorporate unincluded material by reference. Often this material is not provided to prospective customers and is not customer-readable. The issue then becomes that the "customary and reasonable fees" clause is a major source for unpleasant surprises. In short, medical insurance companies maintain an opaque system relating to when they have to pay out, and there is no reason, given problem 2 above, that more competition would reduce this problem. After all, with medical insurance you generally don't know IF something will be covered until you get the statement of benefits after the service.

In some respects this isn't entirely different from some other services. For example, if you took your car to the mechanic and had no idea how much it would cost until the work was done, that would be a problem (and we have laws to prevent this sort of thing). However, with medical care and insurance, there are no similar controls. Given the additional incentives for cost control (meaning reducing payouts) embodied in problem 2 above, and given the fact that these rates are NOT published in a consumer-readable format or often even made available to the consumer at all, we have a problem which requires additional regulation.

So insurance as a class requires some laws separate from other services. Medical insurance and care requires some consumer protection laws which should be borrowed from comparable services (auto mechanics etc).
9.18.2009 12:54pm
richard1 (mail):
Btw, does anybody know if religious objections will be honored, as with opting out of mandatory service requirements.

Yes, there is a religious objection exemption in the bills that contain a personal mandate.
9.18.2009 1:04pm
Some dude:
You need a part deux to answer this question‽ Here's a hint: It is quite obviously unconstitutional, unless you have the inability to see the forest through the trees.
9.18.2009 1:05pm
Paul Allen:
I would tend to think that the 16th amendment eviscerated this line of argument. Indeed, in that sense the 16th amendment unraveled the entire notion of enumerated powers by allowing a 'taxation' back door to impose penalties on conduct that would otherwise be outside of the legislative purview.

To wit: a direct tax is one whose levy depends particularly on the person being taxed. i.e., a progressive income tax depends on computing each individuals tax liability. Prior to the 16th amendment, the only form of direct tax permitted was a per-person tax. i.e., one that all citizens would incur equally.

People often confuse the 16th amendment and the income-tax. A flat income-tax or labor tax is not a direct tax as the assessment does not depend on the particulars of 'who' only 'what'; i.e., a flat income tax rate is an excise tax.
9.18.2009 1:15pm
Ben Herne (mail):
"In Recognition of Constitution Day, the Long-Lost Charter Is Printed on Milk Cartons Nationwide" Op-Toons_Review
9.18.2009 1:47pm
dangerous lack of something something:
pbf responded to Malvolio:

"'. . . if one gets a reputation, deserved or not, for treating its customers poorly, it will go out of business. . . .'

This is a bunch of stupid, idealistic nonsense. And if it's true, what do the insurance companies that treat their customers well have to fear from a public option? Especially if it's a public option only for the uninsured?

Of course, as the commenters above point out, what do I expect from a bunch of libertarians?"

First, I support the push of Obamacare. But, Malvolio's point is very valid and represents an honest understanding of what the future may look like with the proposed heavy duty HC regulation.

Mal's point (to me anyways) was making the Comcast and United example of what happens with very onerous govt industry regulation. Those two players can afford the costs of heavy regulation and it assists them in pushing out the little guys with much less effort. Look at JetBlue/Virgin/Southwest - they represent huge amounts of money and they are the competition to United.

Try to open your own airline or cable company. Look at VERIZON - it took the old telecom zombie to rise from the ashes and challenge Comcast with their FIOS in order to make any sort of competition to the 'cast. The other Comcast competitors are either huge corps, forced muni cable, or satellite tv...

Think what the regulation may mean for small doctor offices or minor hospitals - either they team up to share regulatory costs, often at a high price or extortion, or they go out of business and reduce the HC supply of that community. I am a liberal but I certainly agree that the libertarian arguments here are very persuasive against it. Back on topic though - I don't think it's unconstitutional at all, due to the other arguments of the commerce clause mentioned above.
9.18.2009 1:58pm
j huettl (mail):
Take a look a the Bill for Social Security and notice that the preamble to the bill says: IF the people of the United States WANT.......

Like I say to friends, if Social Security were the law of the land, then the states would have voted on it to amend the constitution.

Ditto for the the health care bill is what I say when we see the preamble for this one.
9.18.2009 2:12pm
J. Aldridge:

....but I disagree that such a mandate would be unconstitutional under current precedent, particularly if adopted as part of a comprehensive health care reform plan.

Oh, under current FDR precedent. Don't want to talk about the constitution, its history or the framers, right?
9.18.2009 2:23pm
Mark Buehner:
It really only comes down to how you view the interstate commerce clause. If you believe it allows the feds to do virtually anything (since it will in some convoluted way affect commerce), you will have no problem with mandatory healthcare. If you don't, you probably question why the founders would carefully construct a constitution severely limiting the scope of federal powers and then inexplicably void all of it with an offhand reference to interstate commerce.
9.18.2009 2:48pm
ckirksey (mail):
It would seem that if the issue is the requirement for everyone to buy health insurance or else, then it would depend on what the "else" is. It is obviously constitutional for the government to modify the tax code to add a income tax surcharge and a corresponding tax credit if you have health insurance.

Regulation of health costs to some degree is already being done through Medicare reimbursements payments to providers. People may not like it but it has never been ruled unconstitutional. The odd then about our constitution is that it takes only one person to change it,i.e., 5 to 4 decisions.
9.18.2009 3:03pm
J. Aldridge:
It really only comes down to how you view the interstate commerce clause.

How about if all comes down to the remedy sought by inclusion of "among the states" instead? It had a purpose, there was a reason for including it. The answer defines it along with why the constituion only talks about imposts and duties. Personal views have nothing to do with this.
9.18.2009 3:13pm
fishbane (mail):
Congress clearly has the authority to require every able-bodied man to buy or otherwise obtain for himself a firearm that meets whatever requirements that Congress might set.

I can't see how that might be extended to health care, though.


Just call it combined antidepressant and, er, "personal health"-dysfunction treatment. I think that use might be novel enough that the PTO could issue a patent at this point...

ducking...
9.18.2009 3:19pm
Sarcastro (www):
I'm with some dude. The key to good argument is to make declarative statements with no argument.

Example:

Health care is clearly unconstitutional and anyone who disagrees makes The Founders crying in their graves.
9.18.2009 4:46pm
JohnKT (mail):
I should think the Constitutional authority is granted in the Preamble's "general welfare" clause:


We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.


No? Yes?
9.18.2009 4:57pm
wfjag:
@ einhverfr:

I think the obvious issue is that opponents of Obamacare aren't offering compelling reform alternatives. The debate has become over whether our system needs fixing rather than how to fix it.

Untrue.

Before the August recess there were two House Bills and one Senate Bill that had been introduced by Republicans who oppose Obamacare. The Subcommittee Chairmen to which Subcommittees they were assigned wouldn't even bring them up for discussion. That's an advantage that the Democrats have due to having large majorities in both Houses of Congress. Generally the Republican sponsored Bills involve providing tax credits and deductions for health savings accounts, incentives to businesses to provide health insurance, and allowing small businesses to ban together to obtain health insurance for employees so that they have numbers comparable to those of large employers.

The "news" media has ignored these Bills and repeated the Democratic Party talking point alleging that Republicans have offered no alternatives and are only "the Party of 'No.'" It's hard to tell if the reporters are simply too lazy to investigate (and report) the facts, or, are too partisan to report the facts.
9.18.2009 5:06pm
JMA (mail):
I'm curious (because I'm uninformed) as to whether or not that "welfare clause" has any authority. Promoting the general welfare is given as a reason for creating the constitution, right? ...that is, not as a duty or power included in the constitution and given to some other governmental body.

Does it apply?
9.18.2009 5:20pm
einhverfr (mail) (www):
wfjag:

Ok. Point taken regarding legislators. However, my observation was based more on the political rhetoric aimed at the grass roots. I.e. support or don't support THIS SPECIFIC plan. Obama has brilliantly framed this issue as being ether with him or against him, and opponents have played into that trap.

The issue is that at the grass roots level, the issue of "we don't want healthcare reform" and "we don't want this bill" have become deeply confused.

This being said, I don't like Obamacare. I think we need to start looking at separable issues and pass elements of such reforms separately.
9.18.2009 5:31pm
anon5280:
Any kind of mandatory health insurance will bring the legitimacy of the government into question. There are way too many people who believe, whether you agree with them or not, that the government has no authority to make health insurance mandatory.

And I suspect the jails aren't large enough to hold the ones that will not obey. Even if we release, as we should, all the jailed non-violent drug possessors.
9.18.2009 6:36pm
Bruce Hayden (mail):
You miss the purpose of these obviously poorly-reasoned editorials. They are not intended to convince readers. Rather, they intended to permit Republicans Democrats in competitive districts to say, "While I personally feel that health insurance reform wouldshould be passed, I am unfortunately forced to vote against it, due to some serious Constitutional deficiencies pointed out by noted experts in the Wall Street Journal and Washington Post. I await the day that a law that would not be struck down will be put forward so i can support it . . ."
Fixed it.

Seriously, I have seen little, if any, desire by an Republican in the House voting in favor of any of the current Democratic proposals for health care reform. The elected Representatives who need cover right now are the Democrats in swing districts (there are very few Republicans left in those districts, which is why the Democrats have such a large majority in the House). Many of these districts had Republicans in those seats not 3 years ago and 70 or so of them went for either Bush (43) and/or McCain.

Their constituents are fired up against the Democratic proposals for health care reform, but their House leadership is using every lever in the book to make them toe the party line, when it comes to a final vote on health care reform.
9.18.2009 8:29pm
Steve:
Any kind of mandatory health insurance will bring the legitimacy of the government into question. There are way too many people who believe, whether you agree with them or not, that the government has no authority to make health insurance mandatory.

There are an awful lot of people who believe the government has no authority to tax, either. Yet somehow we haven't given up taxation in despair.
9.18.2009 9:11pm
Cato The Elder (mail) (www):
I was wondering: is there any work that examines how carefully the Framers chose the language in the Constitution that we nowadays pore over? How much did they debate over this particular phrasing, or that one? Given what loki13 described to me about the state of jurisprudence in those times, where judges apparently often hearkened to some abstract concept of natural law outside the text in their decisions, I am wondering whether the Framers could have fully appreciated the future import of the words they set down.
9.18.2009 9:20pm
ArthurKirkland:
The Constitution of Messrs. Rivkin and Casey approves federal administration of torture (and is no impediment to attacking the wrong country with neither provocation nor a declaration of war), yet disapproves federal administration of health insurance.

I like the commonly understood Constitution better.
9.19.2009 1:30am
Tritium (mail):
Pbf:
". . . if one gets a reputation, deserved or not, for treating its customers poorly, it will go out of business. . . ."

This is a bunch of stupid, idealistic nonsense. And if it's true, what do the insurance companies that treat their customers well have to fear from a public option? Especially if it's a public option only for the uninsured?


Seems like it would be difficult for the dead to complain, since they'd likely be the ones with the most grievances.

Paul Allen:
I would tend to think that the 16th amendment eviscerated this line of argument. Indeed, in that sense the 16th amendment unraveled the entire notion of enumerated powers by allowing a 'taxation' back door to impose penalties on conduct that would otherwise be outside of the legislative purview.

To wit: a direct tax is one whose levy depends particularly on the person being taxed. i.e., a progressive income tax depends on computing each individuals tax liability. Prior to the 16th amendment, the only form of direct tax permitted was a per-person tax. i.e., one that all citizens would incur equally.

People often confuse the 16th amendment and the income-tax. A flat income-tax or labor tax is not a direct tax as the assessment does not depend on the particulars of 'who' only 'what'; i.e., a flat income tax rate is an excise tax.


A direct tax is a tax applied directly to the taxpayer, according to a specific measurement. The direct taxpayer according to the Constitution, is the state. The state, once the tax was assessed would be responsible for obtaining it's portion in whatever way they feel was best.

Income Tax was actually found by the Supreme Court to be an Excise Tax. It was later incorrectly declared as a Direct Tax. But when you read the clause regarding the Direct Tax, it's very clear that the state was taxed according to population, the true wealth of a state.

It would also seem that the 16th Amendment allowed a repeal, even though no repeal clause exists in the Amendment, and all amendments must be valid to all intents and purposes of the Constitution, and how something contrary could be considered valid to all intents an purposes is beyond me.

The Constitution is the "Will of the People" and neither the state, nor federal government have a power to repeal any part of the Constitution. If you mend a pair of pants, you're restoring it to the original intent and purpose. Mending doesn't provide for cutting the pant legs off, and making shorts, nor does it provide for removal of all pockets. Such an act would be one of repeal, and no amendment to an already existing law of the land, can be repealed or altered, except from the same source that originally restricted government, the people.

JMA:
I'm curious (because I'm uninformed) as to whether or not that "welfare clause" has any authority. Promoting the general welfare is given as a reason for creating the constitution, right? ...that is, not as a duty or power included in the constitution and given to some other governmental body.

Does it apply?

General Welfare doesn't open the door, but restricts the powers delegated from being used for any other reason than what is declared in the PreAmble. "To promote the general welfare" isn't an all inclusive power to provide healthcare for the general welfare. It only means that when legislating, when executing laws, and when Judging the laws, they must fit into the intents and purposes declared in the PreAmble. If nowhere it can properly fit, then there is a failure in interpretation.

---

It was Natural Law that determines that the people are the Sovereign, the primary principle of our Constitution, and the people having freedom of religion, press, speech, etc. are all concepts that fall under Natural Law. It starts out with all men are created equal, and if all men are equal, no man has any authority over another, unless they choose to be. Even slaves have a choice, but due to ignorance, they wouldn't know any better.

But it's difficult to trust a President who stated the Bush signing statements were Unconstitutional (which is true) and yet continues with the same practice as if suddenly it was constitutional. In effect, a signing statement expressing fault with any part of the bill would be a full Veto, whether signed or not. Especially if the Constitutionality were questioned, since his oath was to support the constitution, and allowing Unconstitutional laws to be passed would be a violation of his oath.
9.19.2009 4:49am
dearieme:
It would all be much clearer if Americans would only adopt my own habit of distinguishing your Constitution - that hallowed document - from your constitution, that body of lore, convention, habit and SCOTUS whimsy by which you are governed. They would then see that it's logically possible for something to be both unConstitutional and yet perfectly constitutional. Legal scholars could still make a living, by making enquiries into what role the Constituion plays in the constitution.

See? You have nothing to lose but intellectual confusion.
9.19.2009 6:54am
JohnKT (mail):
To Tritium:

Thanks for the explanation of the general welfare clause in the Preamble. It was helpful to me. I'm waiting now to see if you get any disagreements before I run with it.
9.19.2009 9:05am
Benjamin Davis (mail):
Well if the court follows its Federal Arbitration Act precedents on affecting commerce, having a local exterminator clean cockroaches out of your mobile home, is considered interstate commerce.

Also, for your textualists so hung up on original intent the primary purpose of the commerce clause was to protect intra-state slave markets and preserve slavery from federal action. Part of the deal to get everyone onboard for the Constitution. You can read Paul Finkelman at Albany Law School's wonderful stuff on the places where slavery is in the Constitution. The original intent to preserve slavery does not seem like a basis for our thinking today. But, of course, Rush Limbaugh just called for segregated schools again so I guess some folks are still caught in a "slavery mentality."
Best,
Ben
9.19.2009 9:11am
David Schwartz (mail):
I have no problem with fining people for not maintaining health insurance. It's not a complete solution and it's not a perfect solution, but it solves a very specific problem that is very difficult to solve any other way.

People are generally rational and when you look at things they do that appear irrational, it almost always turns out that they are in fact rational but responses to perverse incentives. Why buy health insurance that will cover you if you need catastrophic care if you will get that care anyway? The small risk that you'll have to declare bankruptcy is worth the immediate savings in premiums.

So, the perverse incentive comes from the fact that we won't let you bleed to death in the street even if you can't pay for your care. We can't remove that perverse incentive directly, for obvious reasons.

But what we can do is create an equal and opposite perverse incentive, so that your rational behavior doesn't impose costs on everyone else. That opposite perverse incentive comes from fining your for the statistical risk you impose on others by failing to ensure your medical care.

The Libertarian in me bristles, but it also bristles at making others pay for your medical care -- which is what not having insurance will almost always do in a civilized society.
9.19.2009 9:18am
Allan Walstad (mail):

The Constitution of Messrs. Rivkin and Casey approves federal administration of torture (and is no impediment to attacking the wrong country with neither provocation nor a declaration of war), yet disapproves federal administration of health insurance.

I suggest that the Constitution bequeathed to us by the Founders approves of neither.

New Deal precedents should be treated like those of the Reconstruction era, or Plessy. Unless Wickard goes, there's no real limitation on absolute federal power over virtually everything we do.

David Schwartz: If you're a libertarian, you know the answer regarding people who can't or won't provide for their own medical care, namely, anyone so concerned may contribute to private charities to provide aid. Even now, when the feds and other government entities are robbing us blind, there is a lot of private charity. Imagine how much more there could be.

The whole idea that the indigent somehow force government, simply by their indigence, to pay for their care, leads directly to virtually complete collectivism. "We won't let you bleed to death, won't let you freeze without shelter, won't let you starve...." Instead of seeking to rob our fellow citizens to salve our sensibilities, I suggest we contribute charitably and directly to the the aid of others--at least, when we get some of our money back from the pols.
9.19.2009 12:11pm
David Schwartz (mail):
The whole idea that the indigent somehow force government, simply by their indigence, to pay for their care, leads directly to virtually complete collectivism. "We won't let you bleed to death, won't let you freeze without shelter, won't let you starve...." Instead of seeking to rob our fellow citizens to salve our sensibilities, I suggest we contribute charitably and directly to the the aid of others--at least, when we get some of our money back from the pols.
I agree. Good thing I didn't argue that the indigent force government to pay for their care simply by their indigence.

What I did argue is that those who can afford health insurance but don't buy health insurance do in fact force others to pay for their health care should they need it.

Health care is nothing like food or shelter in this respect, except in the rare case some catastrophic loss causes you to suddenly be unable to feed or shelter yourself.

It is further unique in the fact that catastrophic health care often can't be negotiated for because the person in need of such health care is not in a position to negotiate.
9.19.2009 12:20pm
one of many:
Unlike some I'm not certain the commerce power really covers the tax as proposed. Since the tax applies to individuals, we are dealing with whether the action of the individual is subject to regulation. Here though the very action which makes the individual subject to taxation is not the act of engaging in interstate commerce, but the failure to engage in commerce. I'm not so certain that the power to regulate commerce can be stretched to cover those not engaging in commerce for that same failure to engage in commerce.
9.19.2009 2:38pm
Allan Walstad (mail):
David,

I'm sorry, I misread your post. Still, I don't get how "those who can afford health insurance but don't buy health insurance do in fact force others to pay for their health care should they need it." I assume you mean that the state is in fact forcing others to so pay. If we allow that, we're on the slippery slope to Obamacare and beyond. If we are talking about people who are not indigent, then the the medical care provider can presumably get a judgment against their property and future wages. Nor do I quite see the categorical distinction between medical care and other needs like food and shelter. Lacking any one of these can kill you. It just happens faster if you are critically injured in, say, an auto accident.
9.19.2009 3:20pm
mikelivingston (mail) (www):
I think this is a sleeper issue on practical as well as legal/constitutional grounds. What will happen when the first person who is supposed to buy insurance refuses to? With respect to car insurance, one can presumably revoke a driver's license, although in practice many avoid this. What is the equivalent for health insurance . . . will the person be arrested? jailed? prohibited from breathing? The exceptions carved out for social security taxes may wind up tame by comparison.
9.19.2009 4:27pm
one of many:
The current proposals are that one who refuses to buy health insurance will be assessed a tax. It is standard for taxes which are not paid the government either seizes property to pay the tax or jails one for not paying taxes or levies an additional penalty (fine in addition to the tax or some combination. In the case of someone who flat out refuses to pay and doesn't have property the state can easily seize they will no doubt be thrown in jail for refusing to purchase health insurance.
9.19.2009 5:22pm
Jon Roland (mail) (www):
Jeff Dege:

The only provision I can see that authorizes the federal government to mandate that individual citizens buy anything is the militia clause.

Actually, the Militia Act of 1792 did not mandate that anyone buy weapons, only that they acquire them somehow, which in that time could have meant making their own.

Interestingly, militia were sometimes required to care for the sick or injured. We have stories of militiamen who had survived smallpox being assigned to care for active cases of the disease until the victims died or got better. But paying for medicine was not part of the mandate.

So the Militia Clauses are indeed the only clauses that can mandate medical care, but only using what is within the means of nonmedically trained or equipped civilians. In other words, feed and comfort them until they recover or don't. Could include setting bones, or extracting bullets, or cauterizing, binding, or cleaning wounds, since most people can do that with tools at hand, but nothing very sophisticated.
9.19.2009 5:47pm
Jon Roland (mail) (www):
David Schwartz:

What I did argue is that those who can afford health insurance but don't buy health insurance do in fact force others to pay for their health care should they need it.

It is not the indigent patients who force others to pay for their health care, but legislation that requires everyone be treated regardless of their demonstrated ability to pay. Remove that legislation and medical providers could turn away patients who don't demonstrate the ability to pay, or at least provide only minimal care to stabilize them, and then send them on their way.
9.19.2009 5:54pm
Jon Roland (mail) (www):
Allan Walstad:

Unless Wickard goes, there's no real limitation on absolute federal power over virtually everything we do.

Yes, but it's not just Wickard, but a long line of precedents that led up to it. See this spreadsheet of SC decisions to get the progression that has to be undone. At this point about the only way is to adopt amendments as I propose here.
9.19.2009 6:00pm
Jon Roland (mail) (www):
Tritium:

General Welfare doesn't open the door, but restricts the powers delegated from being used for any other reason than what is declared in the PreAmble. "To promote the general welfare" isn't an all inclusive power to provide healthcare for the general welfare. It only means that when legislating, when executing laws, and when Judging the laws, they must fit into the intents and purposes declared in the PreAmble.

Correct. When the Framers used the term "general" in the Preamble and in Art. I Sec. 1 Cl. 1, it meant "not for a part but only for the whole", and was not a delegation of a power but a restriction on the exercise of powers, that they be only for the benefit of the whole and not just for some part.
9.19.2009 6:06pm
Allan Walstad (mail):
Jon--thanks, I'll have a look, though it may take awhile to get to it.
9.19.2009 6:48pm
David Schwartz (mail):
I need to point out that my argument is specifically based on two things. First, it's based on the factual predicate that we do in fact provide critical medical care to people who need it but can't afford it. Second, it's to correct a perverse incentive not to buy health insurance by admittedly countering it with an equal and opposite perverse incentive.

What distinguishes things like food and shelter is that there is no such perverse incentive of any significance. If there was, I'd be willing to entertain the argument that this justified some kind of fee on those who don't arrange for their food or shelter in the advent of some kind of catastrophe as well.

Also, it's not the government that forces this. The same thing would happen if you needed, say, catastrophic food or catastrophic haircuts. If you sit down at a restaurant or barber shop, they'll feed you or cut your hair, trusting that you will do the responsible thing and pay for it or arrange for it to be paid for. If you don't, the restaurant or barbershop has to sue you, and if you declare bankruptcy, they pass the loss on to other customers.

The severity may be due to government, but not the basic fact. And I agree that if you somehow could change the factual predicate on which my argument is based, it would obviously no longer be valid.
9.19.2009 9:32pm
David Schwartz (mail):
Nor do I quite see the categorical distinction between medical care and other needs like food and shelter. Lacking any one of these can kill you. It just happens faster if you are critically injured in, say, an auto accident.
You don't need food or shelter just once and then not anymore like you might with catastrophic medical care. So the perverse incentive to take the risk that if you happen to need it, you'll get it and then declare bankruptcy doesn't occur with those things.

And, again, I agree that you can fix this by removing the perverse incentives in other ways. However, I'm a political realist, and this is the most realistic way to do so in this country.
9.19.2009 9:54pm
Mac (mail):
These include transparency about the conditions under which reimbursement will be made. Currently this is a big problem.



einhverfr,

I have a book about 1/2 to 3/4 ths inch thick spelling out what my insurance covers and what it does not cover and the limits of what it covers. I have never seen a policy that does not spell it out. Not saying they don't exist, but I haven't seen it.

Just an observation.
9.20.2009 12:13am
Mac (mail):

Sounds like the teabaggers complaining about the D.C. Metro, after their meeting on public grounds protected by public law enforcement, etc.



Stevie Miller,

If you want to hear complaining about the DC Metro, you should have heard my daughter and, from what I understand, a whole lot of other Democrats complaining about the same Metro getting them to the Inaugeration 2 to 3 hours late. They managed to turn a 15 minute ride into a 3 to 4 hour ordeal. It's not like it was a surprise that Obama was getting inaugerated on Jan. 20th and that a whole lot of people were coming. I won't even go into the mess at the Mall and lack of planning and organization.

But then, I guess they don't count as they are not "teabaggers". Such a charming term.

By the way, all those folks have paid into Medicare their entire working (well, since 1968) lives and continue to pay into it plus buy a supplement. Guess that doesn't count? The politicians keep adding to Medicare to get votes. You are making an argument for not letting the politicians run health care.
9.20.2009 12:19am
Mac (mail):

einhverfr (mail) (www):
I think the obvious issue is that opponents of Obamacare aren't offering compelling reform alternatives.



I beg to differ. Please go here

Of course, to the committed, I suppose you will say that these reforms are not "compelling". There are others, by the way. It is merely a Democratic litany to say that the Republicans have no alternatives.
9.20.2009 12:26am
Leo Marvin (mail):
David Schwartz, I think a closer example than food is rebuilding assistance in perennial disaster zones, (e.g., earthquake, tornadoes, hurricanes). Since we don't say "no" after a disaster, we either subsidize the free riders or we mandate they buy insurance.
9.20.2009 1:20am
kris (mail) (www):
Jon

Given the punctuation, the "General Welfare" looks to me to be the first enumerated power.

I've always thought that this is a general lawyer's mop-up clause - especially as it tallies with the "necessary and proper" clause.
9.20.2009 2:43am
Jon Roland (mail) (www):
kris:

Given the punctuation, the "General Welfare" looks to me to be the first enumerated power.

No. Read it more closely:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

"Common defense and general welfare" are restrictions on the purposes for which taxes may be collected, not powers themselves.

Now consider what James Madison said in his Veto Message to Congress, March 3, 1817, explaining the words (that he wrote):

To refer the power in question to the clause "to provide for common defense and general welfare" would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper.

By immersing oneself in the literature of the era and the usage of the word "general" one finds it to be a restrictive term meaning "covering all parts uniformly, not just one".

The legal language of the 18th century is not the language we use today. It needs to be studied like a foreign language.
9.20.2009 9:08am
steverino:
the point you're missing and the irony is that the guys screaming "unconstitutional" don't believe Marbury v Madison is good law and that it is unconstitutional for SCOTUS to strike down legislation as unconstitutional.


Wrongo, Kris. All the conservatives I know screaming "unconstitutional" think Marbury v Madison is very good law. It is based on absolute respect for the Constitution as an expression of the will of the people and the supreme law of the land. More importantly, it reflects an understanding of the purpose of a written constitution. The opinion explicitly states that it is intended to be permanent, or else the framers wouldn't have gone to the trouble of writing it down.

Chief Justice Marshall puts great emphasis on two things. The fact that he took an oath to preserve support and defend the Constitution, and that all departments of government are subordinate to that instrument.

Which is why he ruled that he could not enforce an inferior regulation of Congress if it violated the Constitution. As he said, to take an oath to the Constitution if he were to do the opposite:

If such be the real state of things, this is worse than solemn mockery. To prescribe or to take this oath becomes equally a crime.


The thing is his reasoning also applies to the other branches of government. Members of the other branches take the same oath to the Constitution that he did. And remember, he expressly says that the Constitution is superior to all departments.

So based on his reasoning, the legislative and executive branches have the same primary allegiance to the Constitution and would be obligated not to adhere instead to a lesser action of the co-equal judicial branch if they judged it unconstitutional.

Chief Justice Marshall's question regarding what part of the Constitution ought he not read, having taken his oath, applies to all who take the oath. Not just judges.

The unfortunate fact is we no longer have a system of Constitutional supremacy. We have a system of judicial supremacy. They have figured out that they get to say what the Constitution means. And it never means anything that would violate their preferences. Or as they prefer to frame it, evolving social norms. It certainly is no longer considered to be permanent.

We've evolved away from a system of three separate but equal branches. Now we have something more like the Revolutionary Iranian Islamic Republic. Where you have the appearance of representative government. But all the really important issues are decided by black robed Mullahs who alone get to dictate what the founding document states. In their case, the Koran.

Sonia Sotomayor caught hell for saying that policy was decided on the bench. But it is true. She just confirmed everyone's suspicions. Which she realized was a mistake, so during her confirmation hearing she dutifully went back to maintaining the facade.

The exchange on this blog between the professors here and Professor Jost reveals this evolution. If the court stuck to looking at Congress' enumerated powers, the individual mandate would be unconstitutional. But if they look to their own precedents they very easily could decide it is.

Basically, I'm agreeing with Professor Barnett when he says:

But there is one final twist: if the Supreme Court adopts a "presumption of constitutionality" by which it defers to the Congress's judgment of the constitutionality of its actions--as it has and as "judicial conservatives" urge--and the Congress adopts Professor Jost's view that "unconstitutionality" means whatever the Supreme Court says, then NO ONE EVER evaluates whether a act of Congress is or is not authorized by the Constitution.


As he says, it's a neat trick and the current state of things. I find it ironic that it's the "judicial conservatives" who have brought us full circle. They apparently have same complete disregard for their oath to the Constitution as the political classes. John Marshall must be spinning in his grave.

He ruled he wouldn't be true to his oath if he deferred to Congress when he thought they didn't have the Constitutional authority, and now the "conservatives" say they ought to do exactly the opposite.

It is more true to say that no one ever evaluates whether the rulings of the Court are Constitutional. They are by definition held to be so.

The political classes believe, or rather shift the entire responsibility for deciding what act of Congress does or does not conflict with the Constitution. Take McCain-Feingold. George Bush signed it despite saying he thought it was unconstitutional, but said that was up to the Courts to decide. Not the President.

President Obama understands fully the role of the justices n the court. I believe it's the same role FDR envisioned when he threatened to pack the court if they wouldn't stop ruling his new deal was unconstitutional. It's to drop all that pesky alliegance to the Constitution and get with the program. As Obama stated in his 1991 NPR radio interview, it was unfortunate that the USSC never succeeded in breaking free of the constraints of the Constitution and delving into wealth redistribution in order to bring out social justice. Which is why he thought, then, that community organizing was more effective at bringing such change about then litigation.

But of course, now he's in a position to do something about radicalizing the courts, as he thought it was so unfortunate the Warren court was not. So whereas before hes said "I am not optimistic about bringing about redistributive change through the courts," I'm sure these days his outlook has improved tremendously.

That's what this individual mandate is; redistribution of wealth. Your "shared responsibility fee" (that's what the Senate version calls it) buys you nothing. It simply takes money away from you, that could buy you a great deal of health care if you got to keep it, then they force you to buy something you don't want and pay for that to. (In the old feudal days that would have been wine you had to buy from the lord of the manor who required allowed you to farm his land. If you didn't want to buy it, fine, they just poured your portion over the hut. If it flowed up the roof instead of down then, happy days, you didn't have to pay for it. But at least you got something for the fee [Remember, it's not a tax just because the IRS collects it from you and it goes into the general revenue of the USG.]. Thank god we fought a revolution to get away from all that.)

Hypothetical question: If by some happenstance the Courts do reverse their long standing interpretation that the "fundamentally flawed" Constitution is, in Barack Obama's words "a charter of negative liberties" and instead mandates what the government must do on your behalf, what would be the proper response? Just to agree that's what the Constitution now means, because that's what the court ruled.

Hypothetical question 2: When I was commissioned I also took an oath to support and defend the Constitution from all enemies, foreign and domestic, and to bear true faith and alliegance to the same. So, how does one go about doing that if there are only 9 people in the country, I am told, who are competent to say what the Constitution means? And the oath contemplates enemies of the Constitution. Is that even possible? I would think that if there were an enemy of the Constitution, it would be a man who understands the fact it was originally written to constrain government, thinks that's unfortunate, and believes it should gutted of its original meaning and be read to mean the exact opposite in order to address "issues of redistribution of wealth and sort of more basic issues of economic and political justice in this society." Not a document that constrains governmental action, but require it. If not him, who would constitute a domestic enemy of the Constitution?
9.20.2009 3:55pm
Mac (mail):

If not him, who would constitute a domestic enemy of the Constitution?



Can't think of one, steverino.
9.20.2009 5:47pm
David Schwartz (mail):
That's what this individual mandate is; redistribution of wealth. Your "shared responsibility fee" (that's what the Senate version calls it) buys you nothing. It simply takes money away from you, that could buy you a great deal of health care if you got to keep it, then they force you to buy something you don't want and pay for that to.
How is that any different from laws that compel medical facilities to provide urgent care regardless of ability to pay? Unless you change both, you will get the care. The issue is just who pays for it -- you or everyone who has medical insurance.
9.20.2009 6:56pm
Doc Merlin (mail):
Another way of answering this question, is ... could the federal government legally require me to purchase a copy of Obama's new book.

If the answer is yes, then they can make me buy medical insurance.
If the answer is no, then legally they can't make me buy medical insurance.
9.20.2009 8:44pm
David Schwartz (mail):
Doc Merlin: Instead of going to the trouble of choosing the question, why not just choose the answer and drop the pretense? And if they can't legally make you buy medical insurance, why can they tax you to fund FEMA, which is effectively buying disaster insurance?
9.20.2009 8:55pm
steverino:
How is that any different from laws that compel medical facilities to provide urgent care regardless of ability to pay? Unless you change both, you will get the care. The issue is just who pays for it -- you or everyone who has medical insurance.


I don't really get your question r.e. changing "both." The fine I was talking about is part of the Senate's version of the health care legislation. It hasn't been implemented, so it can't be changed as it doesn't exist.

But the fact is that it isn't different from the laws you're talking about. One of the reasons health insurance is so expensive is that the insurers pay padded bills to cover the cost of those unable or unwilling to do so.

Naturally the insurance companies pass the costs on to the insured. So it also is a wealth transfer.

Actually, the whole health insurance industry is, as to keep rates low for the unhealthy, they have to hike up the rates for the healthy.

The system isn't unworkable and expensive because of greedy capitalists running insurance companies. It's been engineered to be unworkable and expensive. Which is one reason why I'm less than enthusiastic about the promised comprehensive health care reform. Designed by the same crowd.

Of course, the draconian confiscatory regulations don't thrill me, either. One wonders why, if this is going to save money or even be revenue neutral as claimed, Congress and the Administration have to put all these extreme and imaginative new means of collecting revenue into the bill.

Another aspect of your question I don't understand is the part where you say ". . . you will get the care. The issue is just who pays for it -- you or everyone who has medical insurance." If the "you" in all cases refers to me, then it's not an either or issue. If I get the care, I pay for it. Not anyone with health insurance. I sometimes get the impression that people don't understand it's possible to actually pay for your own health care the old fashioned way; out of pocket. And much, much cheaper. Like many self-employed, I self ensure. Because I don't want to pay the inflated cost that the insured have to to subsidize all the people Congress has decided don't have to pay. I've received medical care and I pay a fraction of the cost that would be charged an insured patient due to cash discounts. I've got the receipts to prove it.

(I say that because one of the most galling things about this debate is the condescending way the legislators lecture voters that they have to require everyone to have health care because, otherwise, they might not pay their own bills. 1) The only reason that can happen at all is that they designed a system that contains that as a feature, not a bug. There are whole categories of people who don't have to pay. Which leads to further abuse because their are other people who falsely claim to be a member of one of those categories. 2) It is Congress and the Administration that is financially irresponsible, not me or most others who choose to pay our own way. To hear a colleague of Charles Wrangel tell one of their taxpaying constituents that they need to legislate them into compliance because they assume he or she is the kind of person who runs out on their bills would be amusing but for the serious damage they are proposing to do.)

Naturally, if the Obama administration gets its way I won't be allowed to opt out. Right now the wealth transfer from the insured or those who consume less health care to the non-paying or those who consume more health care is voluntary. The old fashioned way I do it, where I simply pay for whatever health care I personally consume without paying for anyone else's, can't be allowed to continue. Because you simply can't cover additional tens of millions and do all the other things they insist on doing unless they make the program mandatory.

If you insure everyone regardless of pre-existing conditions and outlaw the practice of requiring those with higher risk or chronic conditions a higher rate, two things happen if it's still voluntary to have insurance. The insurers have to charge everyone a higher rate because they don't really know who is going to need what amount of care. And the healthy figure out pretty quick that they can always buy insurance if they get sick; remember, they can't be denied for a pre-existing condition. And therefore they don't buy the ridiculously expensive insurance created by their legislators. Nope; you've got to require everyone to take a bite of this sandwich.

What I was specifically complaining about, the orwellian "shared responsibility fee," is a completely separate issue, though, from the mandatory participation. It's just a gratuitious tax. It doesn't get the person so taxed a single thing. The IRS will examine your health care (in addition to your finances) decide if at any point in the year you lacked insurance that meets government standards. It could be completely through no fault of your own; you may have been insured through your employer, but the insurance doesn't meet the regulatory requirement. Something could have changed in your insurance that brought it out of compliance. It doesn't matter. They tax you. Then they impose an insurance policy on you later and make you pay whatever in on top of the tax.

It doesn't go specifically toward paying for anybody's health care. It's just part of the same general revenue generated by income taxes.

But don't call it a tax. Just because it's collected by the IRS at tax time along with your income tax, it's not a tax. Or so we were told by Barack Obama this morning, who is willing to engage in any amount of stupidity in order to be able to claim he didn't raise taxes on anyone earning less than $250k.
9.20.2009 10:18pm
David Schwartz (mail):
Another aspect of your question I don't understand is the part where you say ". . . you will get the care. The issue is just who pays for it -- you or everyone who has medical insurance." If the "you" in all cases refers to me, then it's not an either or issue. If I get the care, I pay for it. Not anyone with health insurance. I sometimes get the impression that people don't understand it's possible to actually pay for your own health care the old fashioned way; out of pocket. And much, much cheaper. Like many self-employed, I self ensure. Because I don't want to pay the inflated cost that the insured have to to subsidize all the people Congress has decided don't have to pay. I've received medical care and I pay a fraction of the cost that would be charged an insured patient due to cash discounts. I've got the receipts to prove it.
The point is that some people who "self insure" will wind up imposing costs on others when they actually get health care that they wind up not paying for, say because they declare bankruptcy.

If you read upthread, you'll note where I conceded that is quite rational for many people to self-insure. This is true in part because (among other reasons, of course) it allows you to shift some of your medical care costs onto others.

It is not unreasonable for the government to take the pool of people who do not have medical insurance and distribute the costs of uncompensated care from people who opt not to have medical insurance among those people.

The point is that this law doesn't do anything that bankruptcy laws and "must provide necessary care" laws don't do, except that it counterbalances the perverse incentives those laws create.

They allow you to continue to rationally decide not to buy health insurance of you want to. But they counter-balance the perverse incentive from the fact that you can just get the care and declare bankruptcy or otherwise get out of paying for it.

We know that people who choose not to carry health insurance raise the costs for others. There's no coherent way to deny that. It's perfectly reasonable to re-impose those costs back on the people who generate them so that when they decide whether or not to purchase health insurance, they're forced to internalize that cost either way.
9.21.2009 1:14am
steverino:
Your entire argument is fundamentally misguided. It is not the self-insured (thanks for correcting my typo) who shift the costs for their care to others. It has been Congress creating that situation over time. There was a time when everyone was self insured. In fact, until Medicare in 1966 it was still quite normal to just pay your own bill. But it's only been since the New Deal, and through every misstep Congress has made since, that the argument you're making has even become imaginable. Let alone something you could possibly believe constitutes the moral high ground.

They've shifted the cost of those who don't pay or are not required to pay to those who either are forced by circumstance to, or simply don't investigate the alternatives, buy insurance. You have zip, zero, nada evidence that it is the cost of those who pay out of pocket that you are subsidizing.

Again, it is simply insulting to be told that I must submit to a government mandate because, at some point in the future I may not pay my bills. Or to prevent me from making the rational choice.

You're also missing the forest for the trees. This thread is about the Constitutionality of these mandates and fines.

I'm not going to go through the entire history of how the entire health care issue has been created by government regulation beginning in the New Deal. And aggravated by every attempt to "cure" the problem. Apparently your view is that once the government creates a huge enough mess, it automatically acquires the authority to spread the cost of its mess to everyone, no exceptions.

Congress can create all sorts of obligations, apparently, by intruding into the market and shifting the costs for some people to certain others. And those certain others apparently acquire the derivative authority to demand everyone share their load.

Where in the Constitution do you find that authority? I missed the clause where it says "If it makes mess, Congress shall have to power to take the pool of people who do not have medical insurance and distribute the costs of uncompensated care from people who opt not to have medical insurance among those people."

Because if this is your argument, that having created a system of perverse incentives in which it is quite rational to opt out, Congress through its previous incompetence acquires the authority to mandate everyone participate in the debacle simply because you find that "not unreasonable" from a cost-sharing perspective, then the Constitution really is irrelevant.

What you are verifying is that the critics of this massive takeover are correct. Having separated the individual consumer from the costs of their own care, and created a public/private muddle, Congress has simply created a rationale whereby you derive the presumed authority to intrude into what should be (and currently is) the private domain.

I have the perfect right to spend my money I how I see fit. You believe you have the right to tell me otherwise because somehow you believe Congress has created sufficient public interest in how I order my affairs because somehow you believe that if I pay only what the GP charges me, or only what the emergency room charges me, or only what the physical therapist charges me, there is still some invisible cost to you that nobody else can see. Not the pharmacy, hospital, doctor, dentist, etc., handing me the bill, and certainly not me when I get that receipt that says I've paid in full.

But since you're participating in the wealth transfer scheme, that gives you the right to demand I do also.

Where do you derive that right?

Seriously, I'm old-fashioned as I said. I believe in the idea that I have the right to "life, liberty, and the pursuit of happiness." I'm also old-fashioned enough to know what the phrase meant to the founders. "Pursuit of happiness" means that I have the right to determine what my own moral responsibilities are, and don't have to adhere to what some priest or ruler-by-divine-right tells me will make me moral and therefore happy.

If I don't have to listen to them when they try to tell me what I ought to believe, why do I have to listen to you when you come presume to tell me what I ought to believe about my obligations to others. Even if it based on some theory you've come up with that I'm costing you and the rest of the public money. And I ought to recognize my responsibilities as you see them by joining you in something that is financially absurd. And I obstinately refuse and say, no I can pay for everything myself without doing that; here are the receipts.

Where do you then derive the right to assume the role of parent dealing with an obstinate child and decide to make me take on what you believe is my duty to you? Is it in the Constitution.

If you have the right to do that, then once government takes over my health care you will have the right to intrude into any other aspect of my life under the rubric of "reducing the cost to others."

And this argument can apply to a bottomless pit of demands you or someone else may wish to place upon me. Remember, Health Care is simply a set of goods and services produced by others. Once we create a "right" to the goods and services produced by others, there really is no limit.

What's next? If you have the "right" to an MRI, what other inventions may someone come up with in the future that you'll value so highly that you'll have a right to that, too? Food and shelter are certainly human needs. Are you going to argue I'm "shifting the cost to others" when I insist on paying for my own food out of pocket instead of participating in the not-yet-mandatory federal "food and housing insurance" scheme?

Essentially, you're saying that you have the right to place mandates upon me whenever you can concoct some argument, based I'm sure on statistical probabilities, that I'm costing you and the rest of the public money by not voluntarily participating in the wealth transfer scheme you've already submitted to.

Where in the Constitution do you presume to derive all this authority? Where does the Constitution come into play when deciding you have the authority or the right to do whatever seems reasonable to you in order to fix whatever unreasonableness Congress has concocted?

Or is the Constitution even a factor in your thinking when you tell me and others like me what my public duties are?
9.21.2009 1:19pm
David Schwartz (mail):
steverino: The authority comes from the power to lay and collect taxes. Congress can give you a tax break based on the number of children you have and you may not like it, but it's not intruding into the decision to have children of forcing people to have children.

It's just a tax, really. It's like every other tax.

You are welcome to self-insure. Nobody is saying anything is wrong with self-insuring. If you pay your bills, that's great. This is simply a tax on those who self-insure. We have taxes on all kinds of things and it doesn't mean they're bad.

This tax makes logical sense because to compensates for certain perverse incentives. Yes, getting rid of the perverse incentives is another way to do that, and I never said otherwise.

This tax is simply greater on behaviors that have a greater risk of imposing costs on others. This forces you to internalize the externality, which is a classic govermnent function.

Ideally, the tax would accurately internalize the externality for each person taxed. That's an ideal that may not be achievable in practice, but your argument seems to be that there's something wrong with this even if it accurately assesses the risk you impose on others.

I presume you also viciously oppose mandatory auto insurance, which does precisely the same thing. (Since when you buy auto insurance, your rate is based on the expected payouts.)
9.21.2009 2:11pm
Jon Roland (mail) (www):
David Schwartz:

How is that any different from laws that compel medical facilities to provide urgent care regardless of ability to pay? Unless you change both, you will get the care. The issue is just who pays for it -- you or everyone who has medical insurance.

It isn't, and those who pass such laws should bear the costs themselves, not impose them on the rest of us.
9.21.2009 2:43pm
Mac (mail):

It's just a tax, really. It's like every other tax


David Schwartz,

Did you not watch Obama's interview with Stephanopolis? Obama insists this is not a tax, regardless of how the Webster Dictionary defines "tax".



If you have the right to do that, then once government takes over my health care you will have the right to intrude into any other aspect of my life under the rubric of "reducing the cost to others.


Steverino,

Now really, how could the government use this to gain control over other aspects of your life? You act like they may start taxing drinks with sugar in them, for your own good and that of society. Oh wait. They are planning that. Hmmm.

This is one of my favorite intrusions into the life of the American citizen as I know many people who think it is unhealthy to consume the sugar substitute and several studies with lab rats have shown that the rats consuming the sugar substitute got fatter than the rats eating sugar. The studies are not definitive, but it is interesting that since the advent of low fat and non-fat foods and wide use of sugar substitutes, we have been getting fatter and fatter. Oh well, guess we won't be studying the data and drawing our own conclusions anymore. The Government knows what is best for us and if "they" are paying for our health care they have a mandate to force us to do what is best for us. Right? Can't wait to see where this all ends.
9.21.2009 4:20pm
David Schwartz (mail):
Did you not watch Obama's interview with Stephanopolis? Obama insists this is not a tax, regardless of how the Webster Dictionary defines "tax".
Yes, but that's from the universe where we accept current commerce clause jurisprudence and we justify the law on commerce clause grounds. I'm addressing the universe where we reject modern commerce clause jurisprudence and justify it nevertheless. My purpose is to show that such a law could be made constitutionally even without the more ridiculous expansions of Federal powers.

I realize that in this real world, Obama does not have to argue that this is a tax. However, in the fantasy world where we are true to the Constitution, he does.
9.21.2009 4:43pm
Mac (mail):

I realize that in this real world, Obama does not have to argue that this is a tax. However, in the fantasy world where we are true to the Constitution, he does.


David Schwartz,

Not to mention the very real world of politics in which he campaigned strongly, vociferously and for a very long time that he would cut, not raise taxes for 95% of the American people. And, pilloried Hilary for proposing the very same idea? Not to mention, many of McCain's proposals. This world is no fantasy, I do believe.
9.21.2009 8:37pm
steverino:
I presume you also viciously oppose mandatory auto insurance, which does precisely the same thing. (Since when you buy auto insurance, your rate is based on the expected payouts.)



I don't viciously oppose mandatory auto insurance. If I don't want to buy it, I don't have to drive.

To avoid having to buy mandatory health care insurance or the excise tax (it is actually labeled a tax, in both the House and Senate bills) I'd have to avoid being born.

That's what this is, a tax on simply being born. Not for engaging in economic activity, not for engaging in a privilege such as driving, but for simply being born.

You are incorrect about something, though. There is a problem with me self-insuring under any of the envisioned plans. The tax on simply being born is in addition to the individual mandate. So I will be taxed for not buying a product from a private company and then, on top of the anti-sales tax, be forced to buy the product. I believe this is the first time in human history that's been done.

And where else could it be done except the land of the free and home of the brave.

But thanks for answering my question. The Constitution, in your eyes imposes no limits on the government when it comes to taxation. You really don't need to think about whether or not the government is exceeding its Constitutional authority at all when it comes to the activity it seeks to regulate, control, or in this case nationalize; it's power to tax is the only clause that remains operable.

If it says it needs the money to cover expenses that it itself has created, then as far as you're concerned that's not "unreasonable."

I know you believe this is fiscally responsible, but in fact it's not.

Because you're not only allowing the perverse incentives that government (speaking generally, although it applies specifically to the health insurance mess) to remain in full force, you are yourself creating a perverse incentive for Congress to create expensive messes. Because when they do, they create the rationale that you support to tax an ever increasing number of people and activities and control an ever expanding amount of the nation's economy.

You can see the same dynamic at play in the Mortgage crisis.

You're also really just accommodating the process by which CA and other states are going bankrupt.

If your views gain ascendancy then the nation is truly on the path to destruction.
9.22.2009 11:45am
David Schwartz (mail):
steverino: You are responding to arguments that I am not making and styling them as responses to me. They are not.

For example, you claim that I'm "incorrect about something" and then go on to discuss properties of various proposed plans. Where did I say anything at all about any proposed plan? All of my arguments would apply precisely the same if no such plans had ever been proposed.

And I'm baffled by your argument that a tax on being uninsured constitutes nationalizing anything at all. Or are you again responding to arguments I'm not making? Did you somehow miss that all I'm talking about is a tax on not buying health insurance?

To avoid paying income tax you'd either have to avoid being born or avoid having anything worth taxing. The same would be true of this.

And whether you like it or not, the Federal government's taxing power is not that limited. It's a fairly broad power. The primary restriction on it is that it not be used to violate rights. Forcing externalities to be internalized is perfectly legitimate.

What happens when you get beat up and robbed and show up at a hospital bleeding and unconscious with no ID? Do you really want them to verify your ability to pay before they treat you? And if not, and you have no insurance and no ability to pay and/or declare bankruptcy, who should pay for that?
9.23.2009 12:17am
Jon Roland (mail) (www):
David Schwartz:

What happens when you get beat up and robbed and show up at a hospital bleeding and unconscious with no ID? Do you really want them to verify your ability to pay before they treat you? And if not, and you have no insurance and no ability to pay and/or declare bankruptcy, who should pay for that?

That isn't really the issue. It is not really about providing enough care to stabilize the patient and give him a chance to recover if then released, the standard of care that prevailed in the 19th century. It is about providing expensive treatments and long-term care. The existing medical system can, by and large, absorb the first level of treatment with its surplus capacity and spread the costs to those able to pay. The problems arise because medical technology has appeared that enables more and more expensive treatments that may extend life, but for shorter and shorter periods. At some point we have to draw a line and stop spending more and more for less and less. To do otherwise will eventually bankrupt any medical providers and perhaps the nation as a whole, but no one wants to take the heat for telling anyone he won't be treated further. Witness the "death panels".
9.23.2009 12:58am
David Schwartz (mail):
Jon Roland: That's a different issue, and I agree, a more serious one. If I don't want heroic measures used to extend my life, why should I pay for heroic measures used to extend someone else's? And if I *am* willing to pay for them, why shouldn't I be able to get them?

It's funny, I know many liberal folks and most of them honestly believe that doctors should be the gatekeepers. I can't think of a worse choice. If my doctor is society's gatekeeper, who will be my advocate? (I personally know people savvy enough to work almost any system. But what happens to the person who doesn't?)

And the worst system of all? Pay doctors a fixed amount based on the statistical condition of their patients. What better way to make doctors and patients interests averse? And what happens if my second opinion doctor thinks I should get a procedure my fixed payment doesn't?
9.23.2009 5:29am

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