December 13, 2010

Josh Marshall: "A year ago, no one took seriously the idea that a federal health care mandate was unconstitutional."

I love this notion that if people stop taking something seriously, it ceases to exist.

One of the most famous books about constitutional law is called "Taking Rights Seriously," and I wish I had $20 for every scholarly law review article that's titled "Taking [something in the Constitution] Seriously." I think "Taking X Seriously" is the biggest cliché in the history of law review articles. And what that means, Josh, is ... Hey, I love the way whose name means joke wants the test of the truth to be whether or not people laugh.

But I'm not joshing, Josh. The reason there are so many law articles called "Taking X Seriously" is that we don't rule out a proposition of constitutional law simply because no one seems to taking it seriously right now. We work through the analysis, and maybe we discover that it should be taken seriously. I mean, think, Josh, think. There was a time when people laughed at the idea of gay rights. There was a time when people laughed at the idea of women's rights.

I started out today chiding a righty who was — unwittingly — saying something that belonged in the mouth of a lefty. And now here comes a lefty, talking like a righty. This is what happens when politicos talk about law. They're super-consistent at the level of outcomes, and they don't notice all the inconsistencies they spout at the level of legal reasoning.

Josh continues:
And the idea that buying health care coverage does not amount to "economic activity" seems preposterous on its face. 
See? Resorting to the laugh test. But, Josh, it's not "the idea that buying health care coverage does not amount to 'economic activity,'" it's the idea that not buying health care coverage does not amount to "economic activity." That's quite a bit less hilarious.

ADDED: Nancy Pelosi worked the "seriously" test back in October 2009:

200 comments:

Coketown said...

LOL!!!

Original Mike said...

Marshall must be refering to "no one" in the same way Pauline Kael did.

traditionalguy said...

You are on a roll, Professor. Joshua never came up to a Jericho with walls like your legal reasonings. Now, will the weakness of Obama's popularity ratings lead the Supremes to go out on a limb and affirm this Judge? Stay tuned.

former law student said...

How about the idea that not selling wheat in interstate commerce is unconstitutional under the Commerce Clause, which regulates interstate commerce?

Triangle Man said...

I posted this in the other thread, but it will probably die out.

If Congress can impose taxes and use our money to buy all kinds of stuff (that we may not individually want), I do not see how this is different.

Jay said...

And nobody takes Josh Marshall seriously...

rhhardin said...

That amounting to economic activity makes something fall under the commerce clause is what's laughable.

former law student said...

tm -- the Constitution specifically authorizes Congress to tax and spend for the general welfare.

Peter Friedman said...

If we take seriously the idea that the federal government cannot mandate the purchase of private health insurance, is there any feasible alternative to a single payer system as a means of controlling health care costs? It's odd, I think, that a mechanism dreamed up by Republicans to salvage a health care system governed by private insurance companies is now being attacked by those same Republicans as constitutionally defective. Medicare isn't constitutionally defective. Or is that an idea we just haven't thought of yet, Professor?

GMay said...

AA said: "I started out today chiding a righty who was — unwittingly — saying something that belonged in the mouth of a lefty."

Then you started out the day missing the point that righty was making.

ricpic said...

Damn, Original Mike beat me to it.

Triangle Man said...

the Constitution specifically authorizes Congress to tax and spend for the general welfare.

Right. So how is the "individual mandate" for health insurance substantively (constitutionally) different than imposing a tax that provides health insurance.

Pogo said...

Medicare isn't constitutionally defective.

Medicare is economically defective.
Impossible, even. Like a perpetual motion machine.

Jay said...

Medicare isn't constitutionally defective.

Medicare is operationally defective

Pogo said...

"So how is the "individual mandate" for health insurance substantively (constitutionally) different than imposing a tax that provides health insurance."

And that argument could be used to cover anything and everything a socialist heart desires.

It will never stop, at least until the usual economic destruction that results (see "USSR, former").

John Stodder said...

The more long-standing rhetorical device to accomplish what what Josh Marshall is trying to do is to say that a legal outcome liberals don't like is based on an "obscure provision" of the Constitution or federal or state law.

As far as I know, the fact that a statute or a constitutional provision is "obscure" reflects on the person who doesn't know about it, not on the law itself. Obscure laws are enforceable on the same basis as famous ones unless they are overturned or repealed.

Yet another variation: Citing the year the given law was passed, as if the age of a law was relevant to its enforceability. "Relying on an obscure 1907 provision..." is a typical trope for those who support attempts to pass unconstitutional laws.

garage mahal said...

This judge being a major shareholder in a GOP messaging firm that argued against health care reform has nothing to do with his ruling.

MrMaryk said...

It seems the only way Josh can argue his point is by misrepresenting the argument.

Lem said...

I've never taken Josh Marshall anywhere.. seriously.

GMay said...

garage: "This judge being a major shareholder in a GOP messaging firm that argued against health care reform has nothing to do with his ruling."

You're right, just like those politically active Dem judges who ruled in favor of it. Are you able to dissect his ruling, or do you just want to do the usual partisan bullshit?

garage mahal said...

You're right, just like those politically active Dem judges who ruled in favor of it.

I don't know any Dem appointed judges that also had stake in messaging firms arguing for HCR? Perhaps you do. I'm guessing not though.

Lem said...

I didnt know Judge Hudson is a Skull and Bones..

Thanks garage.

Eric said...

This is the muddle you get when you have to serve the demands of stare decisis, logic, and the actual text of the constitution at the same time.

As much as I hate the idea, Marshall's logic flows pretty clearly from Wickard, which held that everything everywhere is interstate commerce. Don't know why the framers even bothered enumerating powers when they really meant Congress to be able to do anything it pleased.

I may be simplifying there a bit, but, sadly, not very much.

deborah said...

"it's the idea that not buying health care coverage does not amount to "economic activity.""

Booya!

"That amounting to economic activity makes something fall under the commerce clause is what's laughable."

Will you please elaborate or give an appropriate Econtalk link?

Jay said...

This judge being a major shareholder in a GOP messaging firm that argued against health care reform has nothing to do with his ruling."

So the judge's firm was unsuccessful in the messaging and therefore ruling against the law benefits the judge ___ how?

Original Mike said...

I have been pissed for a very long time over the use of the commerce clause to justify any damn thing they want. What a crock.

Chef Mojo said...

@Garage:

Hudson also put Michael Vick away for dogfighting. What's your point? Because Hudson actually has a life outside being a judge, his judgements are suspect? Where's your evidence? By what standard should Hudson have recused himself from this case simply because he's a Republican? Get real, you moron.

Daved said...

1. Re-write your first full paragraph, it's messed up. Missing a few words.

2. Many of us still dont take gay rights seriously, primarily because homosexuality is not immutable. Though I concede the homosexuals have won many legislative victories.

3. Your response to Marshall was premised on the fact that not taking something seriously doenst mean that thing is wrong. While true, the better answer is that his premise is wrong. LOTS of people were saying Obamacare is unconstitutional, Marshall just doesnt swim in those circles.

Sloanasaurus said...

If we take seriously the idea that the federal government cannot mandate the purchase of private health insurance, is there any feasible alternative to a single payer system as a means of controlling health care costs?

You have to accept the fact that people must be left responsible for their own actions. One of the arguments liberals make is that people who don't buy insurance will ultimately sponge off the collective when they need it. But the collective providing help is a choice the government has made. Just because it has made that choice does not now mean that it can force people to buy insurance to make it cheaper for the government to provide health services.

Therefore, it is a false choice to say there is "no other way" but a public option. The other way is for the government not to provide such services.

Larry J said...

former law student said...
tm -- the Constitution specifically authorizes Congress to tax and spend for the general welfare.


The preamble to the Constitution says it was created to promote the general welfare, not provide it. The preamble specifically mentions that the Constitution mandates establish justice and to provide for the common defense but only to promote the general welfare. Promote is a much weaker word than establish or provide. Also, the preamble uses the phrase "general welfare", as in what is good for everyone, not the specific welfare of individuals.

Wylie E. Coyote said...

"If we take seriously the idea that the federal government cannot mandate the purchase of private health insurance, is there any feasible alternative to a single payer system as a means of controlling health care costs?"

This is an idiotic statement as it presumes "health care costs" are issue that within the power of the state to control.....they ARE NOT!


The "costs" of health care, like any other good or service offered in the real world, are dictated by the supply and demand for it by real people!

The proper determiner of if the "costs" are too high are the individual.....if they value medical services, drugs, etc then they are free to choose to pay them! You have no obligation to pay for the medical care of others thru the state via single payer or other government intervention/regulation!

In fact, the soaring price of medical service can be traced to certain market factors (increased demand by an aging population, premium costs for cutting edge treatment + medicine) but most of the "cost" this liberal stooge P Authoritrian (Peter Friedman) complains about were CAUSED by bad government interventions like Medicare, etc (a shortage of suppliers via regulation forcing some out of the market, third party payer systems ie tax breaks for employer purchased insurance or govt programs, govt price fixing via regulation or programs)....

The government CAUSED the cost problem because clowns like this insisted on damming the lack of utter perfection in our free market medical system and insisted on govt intervention on the false-promise of Medical Utopia via government coersion!

The Statists interventions are destroying the medical system and causing costs to soar - and his "solution" is yet more authorirtrian power over our lives, our money, and our medical care!

Nice.....and typical....

And OBTW.....Medicare and Medicaide are NOT Constitutional simply because at five Statist judges decreed it so a while back.....the State has no authority to force you to participate (in as a recipent or a donor) in a coresive "charity" cum welfare opperation.....

Just like the state has no authority to compell you to behavior in a manner they deem fit.....as this Individual Mandate purports to do....

If the Individual Mandate is allowed to stand, then essentially their are NO LIMITS on the power of the State over the Individual (nor anything that can be termed Individual Rights anymore)......which is how I think useful idiots of the Statist bent like P Friedman want things!

Wylie E. Coyote said...

"If we take seriously the idea that the federal government cannot mandate the purchase of private health insurance, is there any feasible alternative to a single payer system as a means of controlling health care costs?"

This is an idiotic statement as it presumes "health care costs" are issue that within the power of the state to control.....they ARE NOT!


The "costs" of health care, like any other good or service offered in the real world, are dictated by the supply and demand for it by real people!

The proper determiner of if the "costs" are too high are the individual.....if they value medical services, drugs, etc then they are free to choose to pay them! You have no obligation to pay for the medical care of others thru the state via single payer or other government intervention/regulation!

In fact, the soaring price of medical service can be traced to certain market factors (increased demand by an aging population, premium costs for cutting edge treatment + medicine) but most of the "cost" this liberal stooge P Authoritrian (Peter Friedman) complains about were CAUSED by bad government interventions like Medicare, etc (a shortage of suppliers via regulation forcing some out of the market, third party payer systems ie tax breaks for employer purchased insurance or govt programs, govt price fixing via regulation or programs)....

The government CAUSED the cost problem because clowns like this insisted on damming the lack of utter perfection in our free market medical system and insisted on govt intervention on the false-promise of Medical Utopia via government coersion!

The Statists interventions are destroying the medical system and causing costs to soar - and his "solution" is yet more authorirtrian power over our lives, our money, and our medical care!

Nice.....and typical....

And OBTW.....Medicare and Medicaide are NOT Constitutional simply because at five Statist judges decreed it so a while back.....the State has no authority to force you to participate (in as a recipent or a donor) in a coresive "charity" cum welfare opperation.....

Just like the state has no authority to compell you to behavior in a manner they deem fit.....as this Individual Mandate purports to do....

If the Individual Mandate is allowed to stand, then essentially their are NO LIMITS on the power of the State over the Individual (nor anything that can be termed Individual Rights anymore)......which is how I think useful idiots of the Statist bent like P Friedman want things!

Wylie E. Coyote said...

"If we take seriously the idea that the federal government cannot mandate the purchase of private health insurance, is there any feasible alternative to a single payer system as a means of controlling health care costs?"

This is an idiotic statement as it presumes "health care costs" are issue that within the power of the state to control.....they ARE NOT!


The "costs" of health care, like any other good or service offered in the real world, are dictated by the supply and demand for it by real people!

The proper determiner of if the "costs" are too high are the individual.....if they value medical services, drugs, etc then they are free to choose to pay them! You have no obligation to pay for the medical care of others thru the state via single payer or other government intervention/regulation!

In fact, the soaring price of medical service can be traced to certain market factors (increased demand by an aging population, premium costs for cutting edge treatment + medicine) but most of the "cost" this liberal stooge P Authoritrian (Peter Friedman) complains about were CAUSED by bad government interventions like Medicare, etc (a shortage of suppliers via regulation forcing some out of the market, third party payer systems ie tax breaks for employer purchased insurance or govt programs, govt price fixing via regulation or programs)....

The government CAUSED the cost problem because clowns like this insisted on damming the lack of utter perfection in our free market medical system and insisted on govt intervention on the false-promise of Medical Utopia via government coersion!

The Statists interventions are destroying the medical system and causing costs to soar - and his "solution" is yet more authorirtrian power over our lives, our money, and our medical care!

Nice.....and typical....

And OBTW.....Medicare and Medicaide are NOT Constitutional simply because at five Statist judges decreed it so a while back.....the State has no authority to force you to participate (in as a recipent or a donor) in a coresive "charity" cum welfare opperation.....

Just like the state has no authority to compell you to behavior in a manner they deem fit.....as this Individual Mandate purports to do....

If the Individual Mandate is allowed to stand, then essentially their are NO LIMITS on the power of the State over the Individual (nor anything that can be termed Individual Rights anymore)......which is how I think useful idiots of the Statist bent like P Friedman want things!

Wylie E. Coyote said...

"If we take seriously the idea that the federal government cannot mandate the purchase of private health insurance, is there any feasible alternative to a single payer system as a means of controlling health care costs?"

This is an idiotic statement as it presumes "health care costs" are issue that within the power of the state to control.....they ARE NOT!


The "costs" of health care, like any other good or service offered in the real world, are dictated by the supply and demand for it by real people!

The proper determiner of if the "costs" are too high are the individual.....if they value medical services, drugs, etc then they are free to choose to pay them! You have no obligation to pay for the medical care of others thru the state via single payer or other government intervention/regulation!

In fact, the soaring price of medical service can be traced to certain market factors (increased demand by an aging population, premium costs for cutting edge treatment + medicine) but most of the "cost" this liberal stooge P Authoritrian (Peter Friedman) complains about were CAUSED by bad government interventions like Medicare, etc (a shortage of suppliers via regulation forcing some out of the market, third party payer systems ie tax breaks for employer purchased insurance or govt programs, govt price fixing via regulation or programs)....

The government CAUSED the cost problem because clowns like this insisted on damming the lack of utter perfection in our free market medical system and insisted on govt intervention on the false-promise of Medical Utopia via government coersion!

The Statists interventions are destroying the medical system and causing costs to soar - and his "solution" is yet more authorirtrian power over our lives, our money, and our medical care!

Nice.....and typical....

And OBTW.....Medicare and Medicaide are NOT Constitutional simply because at five Statist judges decreed it so a while back.....the State has no authority to force you to participate (in as a recipent or a donor) in a coresive "charity" cum welfare opperation.....

Just like the state has no authority to compell you to behavior in a manner they deem fit.....as this Individual Mandate purports to do....

If the Individual Mandate is allowed to stand, then essentially their are NO LIMITS on the power of the State over the Individual (nor anything that can be termed Individual Rights anymore)......which is how I think useful idiots of the Statist bent like P Friedman want things!

Peter Friedman said...

Sloanasaurus -- you say that "people must be left responsible for their own actions." So does that mean that when you get cancer (or suffer a terrible accident or contract some other terrible disease) without having purchased health insurance (because, say, you're a 25 year old who doesn't want to pay the price) we should just let you die? Is there no feeling of collective responsibility at all left in this country?

Original Mike said...

"If we take seriously the idea that the federal government cannot mandate the purchase of private health insurance, is there any feasible alternative to a single payer system as a means of controlling health care costs?"

Justice Breyer? Is that you?

Revenant said...

How about the idea that not selling wheat in interstate commerce is unconstitutional under the Commerce Clause, which regulates interstate commerce?

The idea that Wickard v. Filburn was wrongly decided is "taken seriously" by quite a few people, FLS.

Rialby said...

If the government can tell you that you MUST buy health insurance just for BEING then they can also tell you that you MUST do one or all of the following:

1) Buy a weekly ration of fruits and vegetables from an approved vendor
2) Buy and use a weekly exercise allotment from an approved vendor
3) Pay for regular check-ups from an approved vendor to ensure that you are not using harmful (or illegal) substances

Where does it end?

former law student said...

Article I, Section 8, Clause 1 of the US Constitution authorizes Congress to tax and spend for the general welfare.

Original Mike said...

"Where does it end?"

You will buy the Chevy, and you will like it.

New "Hussein" Ham said...

"I love this notion that if people stop taking the something seriously, it ceases to exist."

How could Nixon have won? Nobody Josh knows voted for Nixon!

Well, at any rate, Josh's premise is complete bullshit. Nobody he knows wants it to be unconstitutional ... including him. Wishful thinking is what counts as serious thought over on his side of the aisle.

The fact of the matter is that plenty of people took seriously the proposition that forcing people to purchase things from Democrat Party political donors is constitutionally fucking repugnant and likely to lead - were it to be upheld - to a bloody civil war with those very same Democrats.

And those people fucking sued the shit out of the Democrats.

And won their case.

Easily.

Handily.

Jokingly easy.

Wylie E. Coyote said...

"Peter Friedman said...
Sloanasaurus -- you say that "people must be left responsible for their own actions." So does that mean that when you get cancer (or suffer a terrible accident or contract some other terrible disease) without having purchased health insurance (because, say, you're a 25 year old who doesn't want to pay the price) we should just let you die? Is there no feeling of collective responsibility at all left in this country?"

Typical liberal BS, false choice....

Their is a difference between the availbility of Medical Care and the mechanism by which you pay for the care.....

A compassionate country has the medical care available.....which is not the case in most socialist medical countries....having the best medical care available (which a free market, paitent centered system does) is the moral thing for any society!

How you pay for the medical care is NOT a "collective" responsibility!

Just like how you should have the freedom of how and where to receive medical care, you have the choice of HOW to pay for the care in a free society....you can get insurance, pay from your income or savings, take a loan, get charity from others....you do not have a "right" to force others to pay for your medical care!

Medical insurance is NOT a welfare plan by which everyone gets 100% of everything covered under every and all circumstance....this is clearly a deliberate distortion by the Statist....

Nope, insurance is to cover your finacial exposure that you do not feel you can handle from your personal funds/income against an event or action that is unforseen and unlikely....

It is entirely rational that the "25 year old would NOT want to pay for full coverage (ie routine appt, everything, all the time) medical insurance but rather would want a low cost, high deductible plan that covers what he feels he cant handle out of pocket.....a rational choice that an individual in a free society should be allowed to make.....and with this choice, if their are bills left over, they are treated no differenetly then any other debt!

No what is immoral is to demand life and death power for the state and a huge chunk of your income.....and trample on your Individual Rights/Freedoms.....and try to turn one personal compuction to get something for free or to compel one's individual version of charity by force into some kind of mythical "collective" responsibility....

This is neither moral, rational, or compatabile with individual rights and a free society!

Gabriel Hanna said...

@fls:

No one disputes that. What they dispute is how much regulation of the general welfare is consistent with the rest of the Constitution, including the Bill of Rights.

Your answer seems to be that there is NO limit on government authority to regulate the general welfare, but if you qualify that it anyway I'm happy to hear it.

People need to eat more vegetables to be healthy. Let's have Congress regulate the diets of individual Americans. It will save on health care costs. Congress can regulate when we go to bead, and tax people for staying up too late. It's all for the general welfare, right?

And Congress could decide that the general welfare requires us all to marry someone of the opposite sex--stable two-parent families reduce crime and poverty and improve the general welfare--and on what ground will you resist then, I wonder? Because you've already subordinated every other part of the Constitution to the "general welfare".

New "Hussein" Ham said...

"... think, Josh, think... "

A year ago, people took Josh Marshall seriously.

(To the country's ultimate peril.)

New "Hussein" Ham said...

"How about the idea that not selling wheat in interstate commerce is unconstitutional under the Commerce Clause, which regulates interstate commerce?"

Wicker does not advance that idea - and you know it.

Wicker advances the idea that once a farmer grows wheat, the government may, if it chooses, regulate what is done with that wheat. It doesn't have to, but it can.

Wicker does not advance the argument that the government may force us to grow wheat in the first place.

It's no wonder you're a former law student. You haven't the intellectual rigor for even that easy task.

Original Mike said...

Frankly, I don't see how it CAN be Constitutional, but what do I know.

garage mahal said...

Medical care should be based on your income level and ability to pay. Like Limbaugh said, it should be like how we treat dogs. You have the money, you pay. If you don't have the money, well you don't have the money. Get some.

former law student said...

I was addressing the idea the professor phrased as not buying health care coverage does not amount to "economic activity."
"Buying" and "selling" are economic activities, "growing" is not.

New Ham reveals himself to be a sort of Michael Bloomberg authoritarian, describing the failure to tax every dime one earns as "putting" money in Americans' hands. Growing wheat for your own use, not for sale, is not an economic activity, any more than painting your own house is income to you in the amount of professional painters' labor you avoided paying for.

New "Hussein" Ham said...

"Medical care should be based on your income level and ability to pay."

But that is not the idea Barack Obama is advancing.

Barack Obama is not suggesting that we charge Warren Buffet MORE for health care than we would charge an indigent homeless person.

If he did that, then people would probably rally round him.

What Barack Obama wants to do is force Americans to buy shit from the Democrat companies which donate to his re-election campaign.

I'm all for charging Warren Buffet a billion dollars for every band-aid he's issued by the government. Except that's not what Democrats are for.

Bruce Hayden said...

How about the idea that not selling wheat in interstate commerce is unconstitutional under the Commerce Clause, which regulates interstate commerce?

Let me suggest Judge Hudson's answer, which is that growing wheat or marijuana involves a conscious decision to do so, even if for one's own consumption. But the individual mandate penalty involves a failure to intentionally enter interstate commerce. In other words, the distinction is between an intentional action v. a non-action, whether intentional or unintentional.

Lem said...

Katie Couric's spin tonight..

Opponents of Health Care Reform "just found an ally" in the courts.

Gabriel Hanna said...

@fls:

"Buying" and "selling" are economic activities, "growing" is not.

How not? If everyone grew their own wheat sufficient for their needs interstate commerce and the general welfare would be affected.

This is why we have subsidies and price supports.

@Ham:

I'm all for charging Warren Buffet a billion dollars for every band-aid he's issued by the government.

I'm not. I'm for him buying band-aids in the quantity he thinks justified by the market price and his need, and every other citizen doing the same.

New "Hussein" Ham said...

"Growing wheat for your own use, not for sale, is not an economic activity ..."

Sure it is. And the Supreme Court ruled that is the law of this land. They completed law school.

Every stalk of wheat grown for one's own use (or the use of one's cow) is one stalk of wheat not bought for one's own use from thy neighbor. This has significant effects in interstate commerce.

What Barack Obama wants to do - however - is to force us to sharecrop wheat (buy insurance) on plantations owned by his campaign donors.

And he has been laughed right the fuck out of court. The federal government may regulate which insurance products we may buy across state lines, but Democrats cannot force us to purchase them.

Period.

It's common fucking sense to everyone not emotionally invested in Barack Obama.

Bruce Hayden said...

tm -- the Constitution specifically authorizes Congress to tax and spend for the general welfare.

Within the limits set by the Constitution, as I noted in the last thread.

But, here, the Judge determined that it wasn't a tax, but was instead a penalty. And, for that, Congress needed the Commerce power, not a Taxing power.

The judge looked at a bunch of different things when coming to this determination. For example, Congress called it a penalty, changing from calling it a tax at essentially the last minute in the actual statute. And, the major purpose of the provision is not to raise revenue, but rather, to cause or prevent certain behavior. In short, if it walks like a duck, and quacks like a duck, then it is a duck, and not an alligator, no matter what the Administration says after the fact.

Wylie E. Coyote said...

"Medical care should be based on your income level and ability to pay. Like Limbaugh said, it should be like how we treat dogs. You have the money, you pay. If you don't have the money, well you don't have the money. Get some."

Again, false choice.....all or nothing.....Utopian "equality" thru state force...arrr

Again, the first priority is to HAVE medical care or drugs, etc available......the payment issue is secondary.....and would be MUCH less of an issue without Authroritiran state intervention/price control....

Medical care is neither available, equal (political elites cheat the system routinely in socialist medical countries), nor affordable (since demand is unlimited at the individual level).....

Nor is their any proof that the proponets of Authorirtrian State medical control can produce that point out how people were dying by the hundreds in the streets due to lack of an ability to pay for medical care.....whereas we can point to many tens of thousands of cases where the State has "death paneled" individuals out of exsistance (is this compassion?)....

No, if you feel bad about some folks inability to pay for all of their medical care, you are free as an individual to give every cent you have......you do not have the right to use the force of the state to make other's comport to your idea of charity!

Bruce Hayden said...

"If we take seriously the idea that the federal government cannot mandate the purchase of private health insurance, is there any feasible alternative to a single payer system as a means of controlling health care costs?"

Of course, you have to count in the fact that the only way that the government could make a single payer system control health costs would be to ration health care. Death Panels anyone?

Keep in mind that when something is free, or highly subsidized by others, demand increases significantly. And that is what happens with government supplied medical care, and, yes, why both Medicare and Medicaid are in such financial straights.

What could we do to reduce health care inflation without succumbing to either single payer or government controlled medical care?

- reform and limit malpractice claims and litigation
- eliminate employer deductibility of health care insurance
- eliminate state mandates to coverage
- which would potentially enable interstate competition.
- give added incentives to high deductible plans, and potentially penalize first dollar coverage.

And, much more.

former law student said...

But the individual mandate penalty involves a failure to intentionally enter interstate commerce. In other words, the distinction is between an intentional action v. a non-action, whether intentional or unintentional.

As long as you have a body you are in the health care market.

I wouldn't mind an "opt out" provision as long as it never let you opt in. You would only get as much health care as you could pay cash for.

PaulV said...

FLS-Why did you omit the rest of the sentence in Art 1, Section 8?

"but all Duties, Imposts and Excises shall be uniform throughout the United States"

Is it the same reason the drafters of ObamaCare use penalty rather than Tax? The Tax involved is not one allowed under Constitution.

Fen said...

No one's mentioned all the waivers handed out... IF you are politically connected.

"Muscovites burning their own furniture to survive the winter because the Politburo Elite has diverted all timber resources to build dachas on the Black Sea"

That's what Obamacare will be.

Gabriel Hanna said...

@fls:

I wouldn't mind an "opt out" provision as long as it never let you opt in. You would only get as much health care as you could pay cash for.

Nice. People either have to do it the way Congress says, or they can never have any form of insurance at all. Can they pay with a credit card at least? Can their relatives and friends take up a collection on their behalf?

Tell us what you REALLY think.

Bruce Hayden said...

As long as you have a body you are in the health care market.

I wouldn't mind an "opt out" provision as long as it never let you opt in. You would only get as much health care as you could pay cash for
.

Not really. There have been people throughout our history who have never seen a doctor. Admittedly less so now, but they still likely exist.

The basic problem with eliminating the mandate penalty is that it was designed to make people who would rather spend their money on other things, such as partying, pay for health insurance. And, combine that with the prohibition on not covering preexisting conditions.

rhhardin said...

Will you please elaborate or give an appropriate Econtalk link?

coincidence

Richard Epstein

Wickard does not pass the laugh test if the issue is whether it bears any fidelity to the original constitutional design.

former law student said...

Death Panels anyone?

Death panels have already come to the Grand Canyon State. From the NY Times, a week ago Thursday:

PHOENIX — Even physicians with decades of experience telling patients that their lives are nearing an end are having difficulty discussing a potentially fatal condition that has arisen in Arizona: Death by budget cut.

Randy Shepherd, who needs a heart transplant, showed scars from an earlier operation. He hopes a decision is reversed.

Effective at the beginning of October, Arizona stopped financing certain transplant operations under the state’s version of Medicaid. Many doctors say the decision amounts to a death sentence for some low-income patients, who have little chance of survival without transplants and lack the hundreds of thousands of dollars needed to pay for them.

“The most difficult discussions are those that involve patients who had been on the donor list for a year or more and now we have to tell them they’re not on the list anymore,” said Dr. Rainer Gruessner, a transplant specialist at the University of Arizona College of Medicine. “The frustration is tremendous. It’s more than frustration.”


Oh well. Maybe his church could have a bake sale.

Ann Althouse said...

Sorry about the first sentence. A stray "the." Fixed.

former law student said...

"but all Duties, Imposts and Excises shall be uniform throughout the United States"

Yes, and Taxes don't have to be uniform. Look up Duties, Imposts, and Excises, then get back to me.

Ann Althouse said...

"How about the idea that not selling wheat in interstate commerce is unconstitutional under the Commerce Clause, which regulates interstate commerce?"

In Wickard v. Filburn, the individual who was regulated was a farmer engaged in an economic activity, farming. He grew some wheat that he kept for use as seed and to feed livestock. This was a commercial activity that he chose to enter into, as the govt was trying to control supply to stabilize prices. By providing for his own seed and feed, he avoided being a buyer in the market and affected the market. He also had a supply of wheat that he might have chosen to sell if the price was tempting.

The requirement that individuals buy health insurance is different because the people who are regulated aren't doing anything by choice. They are just people, existing in the world.

Eric said...

I wouldn't mind an "opt out" provision as long as it never let you opt in. You would only get as much health care as you could pay cash for.

I wouldn't either, and would probably take that option if I were 20 and healthy again. But that's the whole point of the mandate, isn't it? To force the young and healthy to subsidize the old and sick.

edutcher said...

Marshall's main thesis is, as the Lefties love to say, fundamentally flawed. LOTS of people said a federal health care mandate was unconstitutional. The idea that the Feds can Constitutionally make you buy something was one of the original challenges to ZeroCare.

PS fls, how much of that was due to ZeroCare plundering Medicare and Medicaid?

former law student said...

Keep in mind that when something is free, or highly subsidized by others, demand increases significantly.

Utilization goes up, but underlying demand doesn't go up. People who felt a strange lump would go to the doctor instead of waiting till they were Stage IV.

Ann Althouse said...

""How about the idea that not selling wheat in interstate commerce is unconstitutional under the Commerce Clause, which regulates interstate commerce?""

That question is terribly miswritten!

You mean: "How about the idea that not selling wheat in interstate commerce is an activity that Congress may regulate under the Commerce Clause, which regulates interstate commerce?"

My answer above assumes that's what you mean to ask.

It's patently silly to say that not selling wheat is unconstitutional.

former law student said...

Sorry, professor, thanks for your indulgence.

The answer must change if the wheat at issue were merely grown for the family's consumption as bread.

Is the health care market the same as the health insurance market? I can't imagine never participating in the health care market

Ralph L said...

As long as you have a body you are in the health care market
Tomorrow, you're going under Obama's bus. You won't need no stinkin' doctor.

Revenant said...

Medical care should be based on your income level and ability to pay.

Medical care IS based on your ability to pay. Arguing over whether it "should" be is like arguing over whether supply and demand "should" influence prices.

The only way to prevent wealth from influencing the quality of health care is to do all of the following:

(1): Implement single-payer
(2): Implement harsh criminal penalties for paying for any form of medical care or medication
(3): Seal the borders and prevent anyone from leaving the country to seek treatment elsewhere.

Of course, even if you pull that off (which North Korea and Cuba have), medical care just ends up being rationed via political connections instead of price.

Gabriel Hanna said...

@fls:

Utilization goes up, but underlying demand doesn't go up. People who felt a strange lump would go to the doctor instead of waiting till they were Stage IV.

Your first sentence contradicts your second.

They'd be going to the doctor for every scratch, cut and bruise, and since the supply of doctors is finite the price of seeing a doctor goes up.

Not every lump is guaranteed to be a melanoma, which is what you assume, because despite my repeated taunting you refuse to open a biology book.

wv:chani--will put a crysknife in your ribs as soon as look at you, and that's why Muad'dib loved her.

Gabriel Hanna said...

@fls:

The answer must change if the wheat at issue were merely grown for the family's consumption as bread.


Why? The price of bread in the market would fall if more people made their own, thus making your own bread for your own consumption IS an economic activity.

Again, this is why we have price supports and subsidies.

Revenant said...

Utilization goes up, but underlying demand doesn't go up. People who felt a strange lump would go to the doctor instead of waiting till they were Stage IV.

"It isn't that demand has increased, its just that a lot more people want to buy a lot more of the product now".

Thanks for ironing out that distinction for us there, FLS.

former law student said...

They'd be going to the doctor for every scratch, cut and bruise, and since the supply of doctors is finite the price of seeing a doctor goes up.

Who does this? Nobody, or only a few crazy people. Experiment. Try to make an appointment for a doctor to look at a bruise.

You can't build policy around a few kooks.

Ralph L said...

Actually, I first discovered my melanoma as a lump on my thigh while sitting in a hot tub on a ski trip. It was the blood and color change that sent me to the doctor, however.

traditionalguy said...

The logic is clear here.If people can contract for medical care with private businesses, then the Federal Death Panels will lose control over timing the deaths. The surplus people will just not agree to die when they are told to...they have even formed a Tea Party to oppose their murders. How very red neck of them.

Gabriel Hanna said...

@fls:

Who does this? Nobody, or only a few crazy people. Experiment. Try to make an appointment for a doctor to look at a bruise.

Had a roommate did exactly that on a regular basis--because it was free to him (university student).

You can make a doctor's appointment for a bruise, you can go to the emergency room if he won't see you. They have to treat you by law. Seen it happen.

New "Hussein" Ham said...

"... is there any feasible alternative to a single payer system as a means of controlling health care costs?"

Yes. Price controls at gunpoint. I dare you to argue that is not feasible.

The assumptions in this question are fucking ludicrous. The question assumes that single payer controls health care costs - which is patently ridiculous.

The government cannot control health care costs except by killing people.

That is very feasible.

And that is precisely what Democrats are bent on doing.

Maguro said...

Who does this? Nobody, or only a few crazy people. Experiment. Try to make an appointment for a doctor to look at a bruise.

There are two groups of people who go see the doctor a lot for minor stuff: 1) Mothers with small children, who are evolutionarily hard-wired to be paranoid about their little one's health 2) Old people, who are lonely don't have much else going on.

Gabriel Hanna said...

@fls:

You can't build policy around a few kooks.

The few kooks can consume an enormous amount of resources if they are allowed to at others' expense. This is the concept of mean and standard deviation you have so much trouble with.

It's only a tiny fraction of the population that commits murder, yet we spend billions on maximum security prisons and capital punishment.

It's only a few kooks who hijack planes, but we have TSA.

You can think better than this, I've seen you.

Bruce Hayden said...

Who does this? Nobody, or only a few crazy people. Experiment. Try to make an appointment for a doctor to look at a bruise.

You can't build policy around a few kooks
.

It turns out that people who have free or nearly free health care utilize it far more than those who pay for it, and in particular, who pay for every visit. The lower the co-pay, the more they use it. This is not limited to old people - it is just as bad, if not worse, in Medicaid.

former law student said...

You can make a doctor's appointment for a bruise, you can go to the emergency room if he won't see you. They have to treat you by law. Seen it happen.

I don't know about 1959 or whenever that was. Call your doctor up now, tell them you'll pay cash, see what he says.

New "Hussein" Ham said...

Perhaps, but I'm not in the health insurance market. I will arrange for my own health care, thank you.

Insurance is prohibited by religious creed in MOST of the world. It is the most-practiced form of gambling there is and it is religiously abhorrent to every Muslim to be forced by a government to gamble.

former law student said...

The few kooks can consume an enormous amount of resources if they are allowed to at others' expense. This is the concept of mean and standard deviation you have so much trouble with.

Hanna embraces the gun banners' argument. All must suffer for the actions of a few kooks.

Gabriel Hanna said...

@fls:

I don't know about 1959 or whenever that was.

2006, I was -17 in 1959. Who should I believe, you or my lying eyes?

Ah, you're just flailing around now. First you said demand for health care doesn't go up, people just use health care more--I LOL'd. So did everyone else.

former law student said...

It turns out that people who have free or nearly free health care utilize it far more than those who pay for it, and in particular, who pay for every visit. The lower the co-pay, the more they use it.

maguro's argument makes sense, but Hayden's gonna need to produce a source.

New "Hussein" Ham said...

"They are just people, existing in the world."

eople who want to be left the fuck alone and never asked for any of your precious fucking statist death panels.

I have a doctor.

My doctor and I have a private agreement that he will provide me health care and I will provide him with certain services and remunerations which are none of your fucking business and which are not taxable and won't earn one union scumbag one single dollar of income nor a cut of the action.

I don't want your fucking health care or your fucking insurance.

And you can't force me to buy it from Democrat Party donors.

Gabriel Hanna said...

@fls:

All must suffer for the actions of a few kooks.

This is where you invent arguments and attribute them to me. Sorry, not playing.

The other people reading what I wrote know that I said no such thing.

former law student said...

Hanna laughs at the idea of sick people without money to see the doctor. It takes all kinds, I guess.

Bruce Hayden said...

The only way to prevent wealth from influencing the quality of health care is to do all of the following...

But, then, why shouldn't wealth affect the quality of health care you get? Why shouldn't those who work to pay for it get better care than those who don't? Works that way with cars, houses, food, vacations, etc. Why not with health care?

That assumption that everyone should get the same minimal level of health care, regardless of how much they can and do pay, is part of why we find ourselves with the ObamaCare mess today. It is the spreading the wealth around philosophy that got us this screwed up legislation.

It would have been far easier and cheaper to just put those 30 or so million uninsured into Medicaid than it will be with this abomination. But, the Democrats wouldn't do that, because then we would have the unfairness of a two or more tiered system. One tier for those who pay for their own insurance, and one for those who get it at the expense of others. That somehow wouldn't be "fair".

former law student said...

The other people reading what I wrote know that I said no such thing.

How many people will abuse health care if they have it?

Bruce Hayden said...

maguro's argument makes sense, but Hayden's gonna need to produce a source.

I will track it down, but what other good or service is there where the demand doesn't increase as the cost decreases?

MayBee said...

Who does this? Nobody, or only a few crazy people. Experiment. Try to make an appointment for a doctor to look at a bruise.

Tell the doctor you are afraid it's a blood clot.

Really, why deny that there are people who go to the doctor for every last thing? I have friends that go to the doctor if they have a cold for a few days. Every little sniffle warrants a trip to the doctor.

My MIL used to take her aunt to the ER every time it seemed she had the flu, because she was in her 80's. When you are 80 and you are sick, she said, you go to the ER.

New "Hussein" Ham said...

"Call your doctor up now, tell them you'll pay cash, see what he says."

Mine says: 10% cash discount!

That's right. I get a 10% cash discount from my doctor (who I'm quite sure pockets that money and Barack Obama don't get one fucking dime of it since it's not trackable.)

That lowers health care costs.

And opportunities for graft and corruption - which is what really pisses off the Democrats.

Gabriel Hanna said...

@fls:

Hanna laughs at the idea of sick people without money to see the doctor. It takes all kinds, I guess.

Okay, now you're just trolling. Piss off.

Obviously I oppose the government forcing me to put money in an insurance company shareholder's pocket because I HATE SICK PEOPLE.

Loser.

Jay said...

"If we take seriously the idea that the federal government cannot mandate the purchase of private health insurance, is there any feasible alternative to a single payer system as a means of controlling health care costs?"

How about getting the government out of health care entirely?

That will reduce costs.

Gabriel Hanna said...

@Bruce Hayden:

but what other good or service is there where the demand doesn't increase as the cost decreases?

fls's trolling costs nothing, yet we don't demand ANY of it.

Methadras said...

Of course no one seems to take it seriously because we had the human shit stain of a speaker when asked if it was constitutional respond with a "Are you serious? Are you serious?" and then to later have her spokesmouth shit out a completely unplausible pretension that mandating that citizens buy health insurance from the government falls under the commerce clause.

Are you serious? Are you serious?

Fuck these leftards and their supporters. You know who they are. Fuck them into hell.

former law student said...

It would have been far easier and cheaper to just put those 30 or so million uninsured into Medicaid

Not in the state of Arizona. They're trying to cut the eligibility to those who make only a fraction of the Federal Poverty Level. (Arizona raised it to 100% of FPL in good times, back when Clinton was President.)

Gabriel Hanna said...

@fls:

How many people will abuse health care if they have it?

How many people abuse free snack bar privileges, how many would abuse free gas, how many would abuse free money--enough that there is an entire concept called "moral hazard" that addresses this issue.

New "Hussein" Ham said...

"How many people will abuse health care if they have it?"

Nobody abuses health care. They abuse health insurance.

Health insurance is not health care. Lots of people commit insurance fraud.

Nobody commits health care fraud.

Stop being a fucking moron and confusing "care" with "who pays."

The people who advocate for insurance are the "somebody else should pay for my shit" crowd of losers and leeches.

Gabriel Hanna said...

@fls:

http://en.wikipedia.org/wiki/Moral_hazard

Moral hazard arises because an individual or institution does not take the full consequences and responsibilities of its actions, and therefore has a tendency to act less carefully than it otherwise would, leaving another party to hold some responsibility for the consequences of those actions. For example, a person with insurance against automobile theft may be less cautious about locking his or her car, because the negative consequences of vehicle theft are (partially) the responsibility of the insurance company.

Economists explain moral hazard as a special case of information asymmetry, a situation in which one party in a transaction has more information than another. In particular, moral hazard may occur if a party that is insulated from risk has more information about its actions and intentions than the party paying for the negative consequences of the risk. More broadly, moral hazard occurs when the party with more information about its actions or intentions has a tendency or incentive to behave inappropriately from the perspective of the party with less information.

Moral hazard also arises in a principal-agent problem, where one party, called an agent, acts on behalf of another party, called the principal. The agent usually has more information about his or her actions or intentions than the principal does, because the principal usually cannot completely monitor the agent. The agent may have an incentive to act inappropriately (from the viewpoint of the principal) if the interests of the agent and the principal are not aligned.

Methadras said...

former law student said...

How about the idea that not selling wheat in interstate commerce is unconstitutional under the Commerce Clause, which regulates interstate commerce?


You can survive without mandatory federal healthcare. You can't without food.

New "Hussein" Ham said...

"Not in the state of Arizona."

That is because the state of Arizona has been prevented from deporting the fucking leeches that are causing health care costs in America to skyrocket owing to demands for free care:

Mexicans here illegally voting Democrat.

former law student said...

what other good or service is there where the demand doesn't increase as the cost decreases?

Chemotherapy
Dental floss
Pet euthanasia

Jay said...

Call your doctor up now, tell them you'll pay cash, see what he says.

They'll let you right in.

What you ignorants don't understand is that is the model doctors are moving toward.

Jay said...

Watching FLS opine on health care and markets is comical, but depressing.

The left in America knows nothing about either topic.

former law student said...

Also liver, beets, and paper clips.

MayBee said...

Nobody abuses health care. They abuse health insurance.

You obviously don't live in LA.
Or you aren't including prescriptions in "health care".

Maguro said...

Also liver, beets, and paper clips.

Bullshit. If they gave those things away for free, demand would go up. I guarantee it.

Revenant said...

I have seldom seen so much effort devoted to convincing one man of something that is almost universally known to be true.

former law student said...

For example, a person with insurance against automobile theft may be less cautious about locking his or her car, because the negative consequences of vehicle theft are (partially) the responsibility of the insurance company.

In what alternative universe is this? If you make a claim your rates will go up. You will not get the price of a new car, and the odds of obtaining a car in the same shape as yours was is small.

former law student said...

Hayden argued only that demand would go up if the price was reduced, not that the price would be zero.

Seven Machos said...

Call your doctor up now, tell them you'll pay cash, see what he says.

Come on, FLS. Get serious. Doctors, like any other business person, are elated to take cash.

New "Hussein" Ham said...

"I have seldom seen so much effort devoted to convincing one man of something that is almost universally known to be true."

Former Law Student cannot be convinced. And really we're not trying to.

What we're doing is demonstrating just how much of a moron he is by letting him say shit.

He's his own best advertising.

Anybody who cares about this issue merely has to watch how easily his paper tigers are batted away to know how they should view the Democrat Party money grab that is the health insurance scam they're running.

jr565 said...

I would tend to agree with the result,(that is, that we shouldn't be forced to buy health insurance) but isn't the idea of what judges take seriously based largely on the judge in question? So, if you get a wackjob judge he can take things seriously that deserve to not be taken seriously, all based on his biases.
So if you're out to legalize gay marriage for example, you find the judge that takes the view that traditionaly marriage has no merit and that gays are indistinguishable from straights in all ways.
So, you could argue, a year ago noone took subject x seriously or that x was constitutional or unconstitutional until judge so and so took the case and because he's biased towards viewing subject x seriously he views it constitutional or unconstitutional. Which is probably why plaintifss went to that judge in the first place.

New "Hussein" Ham said...

"Doctors, like any other business person, are elated to take cash."

My doctor got a fucking boner when I told him I'd pay cash if he gave me a 10% discount.

His dick grew a minimum of five inches ... and he's Korean!

Gabriel Hanna said...

@fls:

In what alternative universe is this?

Okay, you are now an economic crackpot.

Hayden argued only that demand would go up if the price was reduced, not that the price would be zero.

Granted that my math education is much more extensive than yours, but even you know that going from SOMETHING to ZERO is a REDUCTION IN PRICE?

After all, ZERO is LESS than ANY POSITIVE NUMBER.

former law student said...

Doctors, like any other business person, are elated to take cash.

No doctor has ever wanted me to waste their time even when I was a cash customer. Doctors prize their time and their skill very highly.

Seven Machos said...

FLS -- My wife abuses health care all the time. Every time one of my kids gets a sniffle, or starts rubbing an ear, or whatever, it's off to the doctor.

I long ago lost my ability to say "He's tough! He'll be fine! Don't be a wuss!" and all other moral authority in this area a long time ago when the first kid ended up with salmonella and I adamantly claimed it was probably a harmless flu (which, by the way, salmonella generally is, despite its exotic name, but that didn't matter).

New "Hussein" Ham said...

"So if you're out to legalize gay marriage for example, you find the judge that takes the view that traditionaly marriage has no merit and that gays are indistinguishable from straights in all ways."

No, you find the judge giving blowjobs to all comers down the road at the rest area.

That's how you shop judges today.

And you'll have a selection.

Seven Machos said...

Doctors prize their time and their skill very highly.

Yeah. So do lawyers. But I'll do pretty much whatever you want if you front me my hourly rate in cash.

Gabriel Hanna said...

@fls:

Doctors prize their time and their skill very highly.

AND THEY BILL YOU, GENIUS. If YOU don't have the money, they bill your INSURANCE COMPANY. They may scold you, but they will BILL YOU.

but a guy who is hazy on the relationship between zero and positive numbers is not a guy I want to listen to on cost-benefit analysis.

former law student said...

Hanna: If I saw a sign that said "Free Paper Clips" I'd take a box even if I didn't need them at the moment, because, hey, free paper clips. But "Paper clips/Now 25% off" would not have me reaching for my wallet.

GMay said...

Damn, FLS still didn't get it after someone quoted his cherished Wikipedia? The stupid is strong in this one.

Seven Machos said...

FLS discovers price elasticity: 12/13/10 7:11 PM

former law student said...

AND THEY BILL YOU, GENIUS.

Not when they tell you not to bother coming in. If I insisted, they would, putting me in seven's wife's case.

GMay said...

FLS obviously doesn't associate with many poor people. Watch a mother with Medicaid run her kid to the doctor for the slightest reason. Then get back to us about how insignificant these numbers are.

MayBee said...

Doctors prize their time and their skill very highly.

Absolutely.
So if they've got an extra 3 free minutes, they'll book it. Even if it's just to check your throat and hand you a penicillin scrip so you'll go home and tell everyone how much you love your doctor.

Gabriel Hanna said...

@Seven Machos:

FLS discovers price elasticity: 12/13/10 7:11 PM

If only we could get him to grasp the concept of demand curve--his economic education might to get to 1800.

Jesus.

former law student said...

In Hanna's world no one would buy a car alarm. "Let the insurance company eat it. That's what I pay premiums for."

New "Hussein" Ham said...

"Watch a mother with Medicaid run her kid to the doctor for the slightest reason. Then get back to us about how insignificant these numbers are."

Democrats cream their jeans at this thought.

Since they're guaranteed jobs by this phenomenon.

This is a FEATURE to them. Not a bug.

(Same as "education." Any money spent on education cannot in their view be wasted because 95% of that is salary or benefits and union dues.)

Meade said...

Methadras said...

Of course no one seems to take it seriously because we had the human shit stain of a speaker when asked if it was constitutional respond with a "Are you serious? Are you serious?" and then to later have her spokesmouth shit out a completely unplausible pretension that mandating that citizens buy health insurance from the government falls under the commerce clause.

Serious as the business end of an abortion.

ndmike said...

Formerlawstudent said,

"Article I, Section 8, Clause 1 of the US Constitution authorizes Congress to tax and spend for the general welfare."

Right. But where is the tax? The penalty for failing to buy insurance is clearly just that: a regulatory penalty. That means it is not a tax. So your statement is as irrelevant as it is true.

GMay said...

FLS said: "In Hanna's world no one would buy a car alarm."

You do understand that a lot of people don't buy car alarms right?

Would you care to reconcile this point with the subject you seem to have abandoned (for good reason), or would you just like to try coherence for a few posts?

Gabriel Hanna said...

@fls:

In Hanna's world no one would buy a car alarm. "Let the insurance company eat it. That's what I pay premiums for."

Right, because all economists are wrong and none of them know what they are talking about, but you with no education in the subject whatever know better than those who study it for a living.

you're a crackpot, here's your hat. Tinfoil, of course.

former law student said...

ndmike: I was responding to Triangle Man's question.

Gabriel Hanna said...

@fls:

Surely you will believe The Economist? After all, they are British.

http://www.economist.com/research/economics/alphabetic.cfm?letter=M#moralhazard

One of two main sorts of MARKET FAILURE often associated with the provision of INSURANCE. The other is ADVERSE SELECTION. Moral hazard means that people with insurance may take greater risks than they would do without it because they know they are protected, so the insurer may get more claims than it bargained for. (See also DEPOSIT INSURANCE, LENDER OF LAST RESORT, IMF and WORLD BANK.)

Seven Machos said...

Car alarms

former law student said...

We're not talking free snacks here. People don't go to the doctor because they want to but because they need to. People don't take the pills they're supposed to even if they got them for free.

Jay said...

Effective at the beginning of October, Arizona stopped financing certain transplant operations under the state’s version of Medicaid.

I put the over-under at 2 years when we see a Democratic member of Congress say publicly that doctors (remember they are licensed by the states) can not refuse Medicaid patients, and in fact that doctors should not be allowed to turn away any patients for any reason what so over.

Gabriel Hanna said...

@fls:

People don't go to the doctor because they want to but because they need to.

All people are rational creatures who always think of everyone's good before they decide to consume a resource.

The word "hypochondriac" does not exist, and neither does Munchausen's syndrome.

Seven Machos said...

Right. But where is the tax?

Ding ding ding! Exactly. Obama and the Democrats are hoisted on their own rhetorical petard. They insisted that taxes would not increase because, of course, we can't have that to fund a vast new expenditure.

The law -- the law, the written document -- calls what happens to uninsured people a penalty. A tax is not a penalty. A penalty is not a tax. No amount of rhetoric is going to change that. If Democrats had any balls, they would have labeled the thing a tax and they would not have this problem -- others, but not this one.

Jay said...

Surely you will believe The Economist? After all, they are British.

No, of course not.

You're dealing with someone who is emotionally invested and who's world view depends on said investment.

Letting it go would be akin to a psychotic break.

Gabriel Hanna said...

@fls:

None of these things exist.

http://en.wikipedia.org/wiki/Somatoform_disorder

he symptoms that result from a somatoform disorder are due to mental factors. In people who have somatoform disorder, medical test results are either normal or don't explain the person's symptoms. People who have this disorder may undergo several medical evaluations and tests to be sure that they do not have an illness related to a physical cause or central lesion. Patients with this disorder often become very worried about their health because the doctors are unable to find a cause for their health problems. Their symptoms are similar to the symptoms of other illnesses and may last for several years.

A diagnosis of a somatoform disorder implies that mental factors are a large contributor to the symptoms' onset, severity and duration. Somatoform disorders are not the result of conscious malingering or factitious disorders.

http://en.wikipedia.org/wiki/Factitious_disorder

Factitious disorders are conditions in which a person acts as if he or she has an illness by deliberately producing, feigning, or exaggerating symptoms. Factitious disorder by proxy is a condition in which a person deliberately produces, feigns, or exaggerates symptoms in a person who is in their care. Münchausen syndrome is an older term for Factitious disorder. People with this condition may produce symptoms by contaminating urine samples, taking hallucinogens, injecting themselves with bacteria to produce infections, and other such similar behaviour. People with this condition might be motivated to perpetrate factitious disorders either as a patient or by proxy as a caregiver to gain any variety of benefits including attention, nurturance, sympathy, and leniency that are unobtainable any other way. Somatoform disorders are characterised by multiple somatic complaints.

Jay said...

People don't go to the doctor because they want to but because they need to.

You're simply flinging poo.

Seven Machos said...

People don't go to the doctor because they want to but because they need to.

This simply is not true. Medical care is a good like any other one, subject to the same laws of supply and demand. If people can have more of it at the same cost, they will. If people must pay more for the same amount, or pay more for a lesser amount, they'll consume less.

Don't reduce the price of something and expect consumption to be unaffected. That's absurd.

Alex said...

I still can't deal with the fact Europeans laugh at Americans for not having the cradle-to-grave safety nets they do.

Jay said...

People don't go to the doctor because they want to but because they need to.

I guess that explains the wildly popular cosmetic surgeries in today's society.

Alex said...

This simply is not true. Medical care is a good like any other one, subject to the same laws of supply and demand. If people can have more of it at the same cost, they will. If people must pay more for the same amount, or pay more for a lesser amount, they'll consume less.

Hypochondriacs for sure do, but the rest of us prefer not to be prodded by needles or hear we have pre-cancerous lymphoma. Get my drift?

Bruce Hayden said...

Not in the state of Arizona. They're trying to cut the eligibility to those who make only a fraction of the Federal Poverty Level. (Arizona raised it to 100% of FPL in good times, back when Clinton was President.)

If they are above the federal poverty level, then why do they need the rest of us paying for their insurance?

BTW - keep in mind that these income levels do not include non-monetary transfers such as Medicaid, WIC, subsidized housing, Food Stamps, etc. So, it isn't usually as bad as it sounds.

Gabriel Hanna said...

@Alex:

but the rest of us prefer not to be prodded by needles or hear we have pre-cancerous lymphoma. Get my drift?

The vast majority of doctor visits don't result in either...

Seven Machos said...

I guess that explains the wildly popular cosmetic surgeries in today's society.

It's not that I want a big, firm rack, it's that I need a big, firm rack.

New "Hussein" Ham said...

Facebook Privacy Nugget:

"You understand that we may not always identify paid services and communications as such."

That's right. You agreed to let them mislead you whenever they want.

You remember agreeing to that ... right?

MayBee said...

We're not talking free snacks here. People don't go to the doctor because they want to but because they need to. People don't take the pills they're supposed to even if they got them for free.

It just depends on the definition of "need" and the kind of pills they get.

GMay said...

FLS said: "People don't go to the doctor because they want to but because they need to."

And when they don't have to pay for it, their definition of "need" becomes far more elastic.

But seriously dude, you're getting hammered in every thread you're in today. Maybe you should curl up with a few good Wikipedia articles and call it a night.

former law student said...

Don't reduce the price of something and expect consumption to be unaffected.

I'm glad you realize that people aren't going to get sick more often just because they can afford to see the doctor.

GMay said...

7M said: "It's not that I want a big, firm rack, it's that I need a big, firm rack."

Careful, you're drifting closer to laser hair removal and that will trigger ironrails storming into the thread for one of his "natural" rants.

wv: vulterin - because that's just a badass word right there.

Bruce Hayden said...

Hypochondriacs for sure do, but the rest of us prefer not to be prodded by needles or hear we have pre-cancerous lymphoma. Get my drift?

I don't think that it is merely hypochondriacs. Rather, there appears more usage as the co-pays go down, and less as they go up. It is also the families who take their kids in when they get a sniffle versus toughing it out, and waiting to see if it gets worse.

As for FLS's paperclip scenario, it doesn't matter that you aren't affected by the 25% off sale. Rather, we have to look at the entire population, and see how many are more likely to buy paperclips when 25% off. And, obviously people do respond to sales, or there wouldn't be any of them. So, in the aggregate, it is likely that demand will increase when supply decreases. It most often does. It may not in this situation because most of us have plenty of paper clips, and it is a very low-cost item.

But FLS is essentially arguing that the health care market is inelastic. And, I would suggest that since this is contrary to well accepted economic theory, that the burden is on him, and not me, to show that it is.

Bruce Hayden said...

I'm glad you realize that people aren't going to get sick more often just because they can afford to see the doctor.

No, it is a question of how often you go to the doctor when you are sick, and when you are not.

MayBee said...

fls:
I'm glad you realize that people aren't going to get sick more often just because they can afford to see the doctor.

Is it your contention that only people who legitimately need treatment from a doctor go to the doctor?
What about the emergency room? Does everyone in the emergency room have a legitimate emergency?

Seven Machos said...

more usage as the co-pays go down, and less as they go up

This is obviously true. Health care is a good. It functions like any other good. It's fundamentally silly to argue otherwise. People will buy more health care when it is less expensive and less health care when it is more expensive.

Why are we so worried about people not being able to afford health insurance if we don't believe people buy less of something when it is expensive? Come on, people.

Seven Machos said...

Does everyone in the emergency room have a legitimate emergency?

I once cut my hand very badly. It just wouldn't stop bleeding. So, eventually, I decided that I should probably go to the emergency room. There, I saw a lot of people in tremendous pain and with awful injuries (as well as a lot of people sitting around with no discernible injuries).

By the time I got treated, like an hour after I arrived, my hand had pretty much stopped bleeding and I got some rubber cement on it and that was that.

Was that a legitimate emergency? Would I have been more likely or less likely to go with or without health insurance? Would cost and my own financial situation affect this decision?

PaulV said...

FLS,did you flunk out because of poor reading skills? The taxing powers of the federal government are limited by the requirement all Duties, Imposts and Excises shall be uniform throughout the United States; Duties, Imposts and Excises refer to the only taxes allowed to be imposed by Feds. (Excepting Income taxes as amended). Why else do you think the word tax was dropped and replaced with penalty? Attorneys that work for committees are smarter than you.
Why do you pretend that AZ bcreated Medicare/Medicaid anyway. Feds created them and under funded them and bear blame for death panels required by their stupidity. Why am I shock you are unable to reason?

MayBee said...

Good example, Seven.

FLS is asking us to believe that people are perfect at assessing their medical needs.

murgatroyd666 said...

I used to think that fls was just a troll, having fun.

Now I'm coming to suspect that s/he's really a moby, a right-winger trying to discredit left-wingers by donning a persona that's so bloody stupid that all left-wingers are tarred with Teh Stupid emanating from its claims.

And it's successful!

Seven Machos said...

FLS is a good dude. Just wrong about economics and some foreign policy.

James said...

Austin ER's got 2,678 visits from 9 people over 6 years


In the past six years, eight people from Austin and one from Luling racked up 2,678 emergency room visits in Central Texas, costing hospitals, taxpayers and others $3 million, according to a report from a nonprofit made up of hospitals and other providers that care for the uninsured and low-income Central Texans.

One of the nine spent more than a third of last year in the ER: 145 days. That same patient totaled 554 ER visits from 2003 through 2008.

Gabriel Hanna said...

@James:

It gets better:

In a report last year, Austin-Travis County Emergency Medical Services said that 10 patients made up more than 1 percent of the system's 130,000 contacts with patients in two years. The patients' most common ailments were stomach or chest pains, injuries or respiratory problems.

For the math challenged, 10 people went to the emergency room about 130 times EACH.

When frequent users come to the ER now, Ziebell said, his first obligation is to stabilize them if they are having a medical problem. If not, he tries to assess their problem and determine where they should go for care, such as a community clinic, the local mental health center or a doctor who might be treating their asthma, for example.

"They have a variety of complaints," Ziebell said. With mental illness, "a lot of anxiety manifests as chest pain," he said.

deborah said...

Thanks for the link, rh.

"The government finds itself here in a real pickle. Virginia has drawn a clear line that accounts for all the existing cases, so that no precedent has to be overruled to strike down this legislation. On the other hand, to uphold it invites the government to force me to buy everything from exercise machines to bicycles, because there is always some good that the coercive use of state authority can advance. The ironic point is that this is not a commerce clause argument as such, for in my view any state statute would be subject to the same objection even though the state has plenary police powers."

This is a recent Econtalk I just listened to...have you listened to it already? What do you think?:

What Technology Wants

wv: mench :)

Browndog said...

A University of Chicago law professor opined today that government will unlikely come up with new arguments as the case progresses.

But, what it will do, is come up with different JUDGES.

It's time for the legal profession to re-evaluate itself.

Revenant said...

Here's a scenario that occurs a couple times a year when I get a cold or the flu:

My Mom (on the phone): "Have you been to the doctor yet?"

Me: "Why? There's no cure! He'll just tell me to get rest and drink fluids."

Mom: "You need to go to the doctor! It could be something serious!"

Once upon a time I had a co-pay of a couple bucks. And you know what? I went to the doctor in that situation, because, yeah, it COULD be something serious. In the dozens of visits it never once WAS something serious, but, sure, it could have been. So I spent the $400 or so out of my own pocket (divided over 30-odd visits), and my health insurance provider spent another $5,000 or so over the same 30-odd visits, and everybody wasted a whole lot of everybody else's time.

Now I have a high-deductible plan. I pay out of pocket for the first $2000 of care. Know what happens now when I get the sniffles? I stay home and eat chicken soup, that's what happens.

former law student said...


For the math challenged, 10 people went to the emergency room about 130 times EACH.


Assuming that 100,000 unique patients use that ER, the 10 high users are 100 ppm of the users, or 1-3.9 sigma. These are outliers.

former law student said...

So I spent the $400 or so out of my own pocket (divided over 30-odd visits)

And the doctor never told you to quit wasting his time?

Was he trying to build his practice?

pst314 said...

That's why it's called Talking Points Memo, rather than Thinking Points Memo.

Ralph L said...

Several times my step mother went to the ER for a saline drip because she was dehydrated. She took so many pain pills, she ruined her colon and is now on steroids. Next year she goes on Medicare, so expect it to collapse shortly and Raytheon stock to rise.

My sister diagnosed her mental problem as Munchausen's.

cf said...

Pelosi is really multitalented--a constitutional scholar and an expert on Catholic theology.

Gabriel Hanna said...

@fls:

the 10 high users are 100 ppm of the users, or 1-3.9 sigma. These are outliers.

PRAISE GOD, YOU GET IT!!!!!

Yes, 10 ER users are using 1% of the ER money, despite being only 1/10000th of the population!

This is what I said above, that you ridiculed me for:

The few kooks can consume an enormous amount of resources if they are allowed to at others' expense. This is the concept of mean and standard deviation you have so much trouble with.

It's only a tiny fraction of the population that commits murder, yet we spend billions on maximum security prisons and capital punishment.

It's only a few kooks who hijack planes, but we have TSA.

You can think better than this, I've seen you.


Jesus H tap-dancing Christ.

A tiny fraction, a few kooks, can impose huge costs on the system, and the less skin people have in the game the more of them you will get.

Ignorance is Bliss said...

fls said...

People don't take the pills they're supposed to even if they got them for free.

So close. Try this:

People don't take the pills they're supposed to especially if they got them for free.

Of course, that would be making our point, not yours.

Revenant said...

And the doctor never told you to quit wasting his time?

No, because back here on planet Earth if you go to the doctor with a cold he's perfectly happy to give you advice. And bill your insurance for giving it.

Revenant said...

And it wasn't "he"; this was probably four or five different doctors. I go to whichever one's closest.

Fûz said...

"doctors (remember they are licensed by the states) can not refuse Medicaid patients, and in fact that doctors should not be allowed to turn away any patients for any reason what so [e]ver."

That logic already is coiled up inside Wickard v Filburn, waiting to be sprung.

FWIW, I think Wickard v Filburn is wrong too. A judge shouldn't have had to find an exotic legal combination somersault/triple axel/reverse jump-spinning back hook kick to find ObamaCare unConstitutional and not disturb a hair on Wickard v Filburn's head.

Robin said...

former law student:

You keep saying that everyone participates in the health care market.

But the mandate is not for health care. Its for health insurance.

That's why New Ham keeps settling your hash on this topic, and you keep not getting why.

mockmook said...

What BS!!!

Growing wheat for your own farm is not commerce.

It is called the Commerce Clause, not the Economic Activity Clause.

A prior Court used clever sophistry to create more Federal power; that doesn't mean that power is within the Constitution.

Try this for Stare Decisis: Go back to the Constitution, don't look at gimmicky precedents.

AlphaLiberal said...

Congratulations, Ann, you managed to both miss the whole point of the post and to falsely represent what Josh said.

The point of the article is that the Republican Party has been stacking the bench with activist judges and this guys is very partisan.

After all, the Judge has a stake in a Republican political consulting firm -- which did work against the Affordable Care Act.

And Josh did not actually say this:
"...if people stop taking something seriously, it ceases to exist."

He said it wasn't considered a serious challenge.

You have a tendency to make things up.

cubanbob said...

"former law student said...
How about the idea that not selling wheat in interstate commerce is unconstitutional under the Commerce Clause, which regulates interstate commerce?

12/13/10 4:08 PM"

Plessy vs Ferguson was settled law until it wasn't. Do not assume that Wickard vs Filburn will remain as is indefinitely.

As for the general welfare clause, words have specific meanings and context. The framers meant general welfare as it pertains to maintaing a post office and roads, bridges and harbors. Not as a form of income redistribution. Just because liberal courts have taken the words out the contextual meaning of their time as it was then understood does not in fact make such rulings constitutional or fixed in stone.

The welfare state is unsustainable and will need to be scaled back and when the inevitable happens and suits are filed to maintain the status quo the courts will find the way out the mess they created in the first place. The Supreme Court has already ruled that 50 years ago when it ruled social security is a welfare program created by Congress and can be modified or abolished at anytime by Congress. It doesn't take a rocket scientist to extend that ruling to all income redistribution programs. They will exist until they no longer can. And this is coming sooner than you think.

cubanbob said...

AlphaLiberal said...
Congratulations, Ann, you managed to both miss the whole point of the post and to falsely represent what Josh said.

The point of the article is that the Republican Party has been stacking the bench with activist judges and this guys is very partisan.

After all, the Judge has a stake in a Republican political consulting firm -- which did work against the Affordable Care Act.

And Josh did not actually say this:
"...if people stop taking something seriously, it ceases to exist."

He said it wasn't considered a serious challenge.

You have a tendency to make things up.

12/14/10 12:21 AM"

Democrat appointed judges good, republican appointed judges bad is what your saying. Very profound. As for Marshall his opinion is entirely un-serious. So if other courts also rule the mandate is unconstitutional no doubt he and you will chime away they are not serious challenges.

Cincinnatus said...

Loosely-misinterpreted commerce clause meets willfully-ignored separation clause and what do you get? You get religious exemptions. How far is it from "I am Spartacus" to "I am Amish?"

jamboree said...

The "seriously" test seems to be used far more by the left in the MSM. It goes along with the "if you disagree with me, you must be an uneducated rube" attitude.

Ann Althouse said...

@Alpha I can call attention to whatever part of an article I want. I linked to the article. People can read the things Josh had to say that I declined to comment on. My reason for declining to comment on the thing that you mentioned is that it was the most predictable and banal thing a commentator could say. Pure autopilot legal commentary. It bores me even to point that out. You might note that my first post on the new case complimented the NYT reporter for not saying the thing Marshall did.

Jason said...

Right on cue, here comes Alpha Libtard to spout the libtard lie of the day, right off the presses - that upholding the Constitution in favor of limited government is "activist."

Kirk Parker said...

Hey, see my new blog post "Taking Althouse Seriously" at http://www.just.kidding.com.

former law student said...

You keep saying that everyone participates in the health care market.

But the mandate is not for health care. Its for health insurance.


The first question asked when you go for health care is not "What seems to be the problem?" but "How are you going to pay for this?"

How do people pay for health care?

The elderly get health care paid through Medicare, paying some out of pocket.

The destitute get health care paid through Medicaid. This health care is rationed when times are tough.

The working divide into several groups. Some get health care paid through their employer. A tiny few get health care paid through their union. Some buy insurance. Some young people go without, hoping they will not get, say, testicular cancer.

Who can't pay for health care?

The diner waitress doesn't have insurance. The guy picking tomatoes doesn't have insurance. The maintenance mechanic laid off at 60 because production moved to Red China's COBRA ran out, can't afford insurance.

People rich enough to be self-insured don't need insurance.

Duncan said...

The AG of Virginia explained it thusly:

Back in 1773 or so, the First Continental Congress passed a resolution saying that although they recognized the right of the British Government to restrict trade with nations other than Britain, they were calling for a boycott against British goods.

The resolution was sent to the King and to Parliament. The Chancellor reported to the King and Parliament separately agreed that the Colonials could not be forced to buy British goods -- a boycott was within their rights.

Ken Cuccinelli thus argues that whatever the scope of the powers granted to the federal government by the Constitution, they must be < (less than) and not > (greater than) the powers of the King of England.

Famous Original Mike said...

The Left is seemingly unable to understand the concept of 'activist' judges.

Upholding the Constitution does NOT make you an activist.



WV: torts. Obviously.

AlphaLiberal said...

And now the judge is being criticized for a flawed opinion, from all quarters.

Conservative Orin Kerr from The Volokh Conspiracy:

Judge Hudson does not cite any authority for this conclusion: He seems to believe it is required by logic. But it is incorrect. The point of the Necessary and Proper clause is that it grants Congress the power to use means outside the enumerated list of of Article I powers to achieve the ends listed in Article I. If you say, as a matter of “logic” or otherwise, that the Necessary and Proper Clause only permits Congress to regulate using means that are themselves covered by the Commerce Clause, then the Necessary and Proper Clause is rendered a nullity. But that’s not how the Supreme Court has interpreted the Clause, from Chief Justice Marshall onwards. Indeed, as far as I know, not even the most vociferous critics of the mandate have suggested that the Necessary and Proper Clause can be read this way.


Let's not forget the judge in question also owns shares in a Republican consulting firm that made money opposing the Affordable Care Act.

Clearly the guy also has ethical shortcomings. He should have recused himself.

Thomas said...

Well he did amend his statement if you go back and look again after the fallout from his post that he became aware of