February 1, 2011

Judge Vinson's utterly mundane opinion striking down the health-care law.

Here's the text of Judge Vinson's opinion in Florida v. United States Department of Health and Human Services. It's 78 pages long but quite clearly written, and much of it summarizes the Supreme Court case law. If you don't know the cases, I think you'll find that part readable. If you do know the cases, I think you'll find that part easily skimmable. The meat of the opinion begins at the bottom of page 37, and it follows arguments that should be familiar if you've been reading about the litigation.

Applying the case law to the facts, Vinson focuses on the problem that the individual mandate to buy health insurance reaches individuals who are not engaged in any economic activity. The Supreme Court case law doesn't answer the question whether Congress can require action of those whose inactivity can be characterized — when you take all the inactive people in the aggregate — as having a substantial effect on interstate commerce. I think when the case reaches the Supreme Court (assuming it does), there will and should be more creative arguments about fine-tuning the doctrine, but the district judge has no option other than to apply the case law to the new situation: "I am required to interpret this law as the Supreme Court presently defines it."

Vinson decides that Congress cannot reach inactivity, basically making the simple and straightforward point that we have a system of enumerated powers, and if Congress could reach inactivity because of its economic effect, then it would seem that Congress could regulate everything. There has to be some limit, so the line should be here. I don't think the line does need to be there, since one could stress the extreme degree of the effect on interstate commerce and the great value of designing a coherent system of paying for health care by taking account of the entire, interrelated system of health care services, including the potential future demands on it that everyone represents, even if they happen to be nonconsumers right now. Why not say that is within Congress's power, yet other things remain beyond its power? That too would preserve the structure of enumerated powers. I don't think, in the end, the Supreme Court will be at a loss to articulate a line that includes regulation of the entire enterprise of paying for health care, including health care for people who resist buying it, hoping for continued good health, enough savings to cover future expenses, or free care financed by the rest of us. Distinguish other kinds of inactivity, and it would preserve the idea that something must be outside of Congress's power.

Vinson does engage with this idea, but he's limited by the need to abide by the Supreme Court's case law. Under that constraint, he talks about whether the "uniqueness" of the health care market somehow transforms inactivity into activity. (This discussion begins at page 45.) He refutes uniqueness by coming up with additional examples of markets the individual can't choose to opt out of — housing and food. But housing and food aren't much like health care. They do depend on our all having bodies, but we always need housing and food. Health care is the one thing that you're tempted to think you can get by without, but you might get hit with a huge expense that you can't possibly cover. If you don't buy insurance, you're gaming the system, and some of the people who game the system will take advantage of the rest of us who participated. It really is different from housing and food. You've got constant pressure on you to provide for those things.

Finally, there's the Necessary and Proper Clause, which was key to Justice Scalia's joining the liberal members of the Court in approving of Congress's power to ban possession of marijuana (even in the home-grown, state-approved-medical-use situation). And there's the issue of severability. I'm going to save those topics for separate posts.

My point here is that Judge Vinson has produced a workmanlike application of the Supreme Court case law devoid of flights of creativity, as befits a district court judge.  Politicos who froth about what an extreme activist he is are trying to cow the judiciary into approving of the law because it's a big fucking deal.

158 comments:

Big Mike said...

Nice to see that there's a judge somewhere in America who really does believe in stare decisis.

Henry said...

"...one could stress the extreme degree of the effect on interstate commerce and the great value of designing a coherent system of paying for health care by taking account of the entire, interrelated system of health care services, including the potential future demands on it that everyone represents, even if they happen to be nonconsumers right now.

Once could stress the "great value of designing a coherent system of paying for health care". And some panel of judges, being wholly removed from economic reality, willfully blind to political reality, and selectively ignorant of history, might actually believe it.

I'll make a deal with anyone that argues from this platform. You let Walmart run it the way they run their supply chain, and I'll go along with it.

elliot said...

OK, Professor, make the argument. If you believe the commerce clause allows Congress to regulate even inactivity and yet still remain a government of enumerated and limited powers...name the thing Congress couldn't regulate.

Also, a couple points about the inevitability of participation in the health care market.

1.) Of course you can choose not to participate. People reject health care all the time for religious purposes and other reasons. Hell, isn't the "death panel" argument all about the government wanting to counsel people to reject health care at the end of life?

2.) Even if participating in the health care market is inevitable it does not follow that participating in the health insurance market is. They are NOT the same markets.

Lyssa Lovely Redhead said...

Thank you for the analysis, Professor. I look forward to your analysis on the Necessary and Proper Clause and severability.

I don't, however, agree that with the argument that you can draw the line somewhere else other than inactivity. If I am reading it correctly, Professor A is arguing (and I expect that she is more exercising her analytical muscle than telling us what she really thinks) that you can draw the line based on "importance", which strikes me as far to arbitrary and subjective.

Personally, I think that the commerce clause is read far too broadly already, but, if the line must be somewhere around where it appears to be, it surely must stop at inactivity. Anyone can make an argument that anything (or lack of a thing) is important. This seems akin to interpreting the First Amendment as "congress shall make no law (unless it's really important)." (Which, in fact, seems to be what they do in many cases. But that doesn't necessarily make it right.)

- Lyssa

Original Mike said...

"Applying the case law to the facts..."

Somewhere, Nancy Pelosi is exclaiming, "You can't be serious!".

Issob Morocco said...

Ann,

You said, "If you don't buy insurance, you're gaming the system, and some of the people who game the system will take advantage of the rest of us who participated. It really is different from housing and food. You've got constant pressure on you to provide for those things."

I would say your blythe dismissal of Housing and Food as not prone to gaming as incorrect. What about all of the people who took out mortgages they knew or should have known would fail if they missed a paycheck? Those of us paying our mortgages are being gamed in the same way you describe Healthcare gaming.

As for Food, is not the government gaming us with over burdensome regulation and guidelines which make it lucrative to have children to be paid more money for foodstamps and welfare? Us taxpayers are being gamed there as well for those government outlays allow people to not have to work and still live comfortably.

Whether pressure is constant or not, gaming will occur, as long as humans are involved.

boldface said...
This comment has been removed by the author.
boldface said...

Ann - check the last paragraph of your post. I don't think [Chief] Justice Vinson is still issuing opinions these days. If he is, then that gives a whole new meaning to (after)life tenure!

Scott M said...

Politico who froth about what an extreme activist he is are trying to cow the judiciary into approving of the law because it's a big fucking deal.

Agree wholeheartedly. Vinson isn't creating law from the bench here, ie activism. He's striking down a law from within the confines he's able to work from. He is not inventing emanations and penumbras.

Chase said...

I am not a lawyer and don't get all the fancy reasoning from all the smart people.

But it sure seems that if you live in a country where the government can make you personally buy something that you don't want to but or participate in then it's a country where we are not truly free men and women. Seems like the government is no longer responsive to the people in that case, and that the phrase "government of the people, by the people, and for the people" has basically become castrated from actual meaning.

Fred4Pres said...

I am assuming the Supremes will uphold the law, but I am all for being pleasantly delighted if they do not.

Hagar said...

you might get hit with a huge expense that you can't possibly cover.

You are taking it for granted that I will want that treatment that cost so much, but what if I don't? Are you also going to legislate that if I refuse, the Government can force me to accept it anyway?

I think you are refudiating the argument that if the Gov't can force you to buy medical insurance, it can take care of the homeless problem by forcing the homeless - and everybody else - to buy a house with an FHA mortgage.

But a number of the homeless feel that it is just you that think they have a problem; they would rather do without your "help." And of course there are a number of people that build their own homes, where and how they want to, in Alaska if necessary to get away from you and the Gov't, without any FHA mortgages, and much prefer to go that way.

Original Mike said...

"Health care is the one thing that you're tempted to think you can get by without, but you might get hit with a huge expense that you can't possibly cover."

Please distinguish between health care and health insurance. If what were mandated were real insurance, your point would have merit. But this monster that the politicians have crammed down our throats is not insurance. It's mandated chiropracty, accupuncture, and whatever else a lobbying organization can buy with their campaign dollars. IT'S NOT INSURANCE, and any argument that procedes from the premise that it is is fatally flawed.

You do understand that, don't you Professor?

rhhardin said...

You lost me when the commerce power came in.

It's in the wrong place now to start with.

Lawyers game the legal system, which is what makes it possible for sick people to game the health care system.

Otherwise sick people would have to rely on ordinary charity, which worked fine but happens case by case, which is to say that gaming health care is hard.

Original Mike said...

I'm sorry for my tone, but calling this thing insurance pisses me off!

G Joubert said...

I don't think, in the end, the Supreme Court will be at a loss to articulate a line that includes regulation of the entire enterprise of paying for health care, including health care for people who resist buying it, hoping for continued good health, enough savings to cover future expenses, or free care financed by the rest of us. Distinguish other kinds of inactivity, and it would preserve the idea that something must be outside of Congress's power.

Distinguish how? You can say what you said in the abstract, but there is no way to say where that line is in reality. There are lots of other human "needs" besides health care that could also qualify once you start down this road.

Lincolntf said...

If you're not buying insurance, you are not necessarily "gaming the system". Paying for decades of health care you never need or use is getting gamed, though. I trust the marketplace a lot more than the roundtable of dilletantes who would necessarily take it's place.

Lem said...

..devoid of flights of creativity..

The Judge's 'living expanding constitution' has a tiger mother.

Althouse calls him garbage ;)

pduggie said...

I'm surprised you think that by understanding 'health care' as some kind of total system it permits the government total control over it.

I think that still is an unlimited mandate for a command economy, which is pretty far beyond enumerated powers and the idea of 'regulating' interstate commerce.

Govt can tax, but govt can't tax all money at 100%. Govt can regulate, but got can't take over commerce entirely.

Original Mike said...

"I don't think, in the end, the Supreme Court will be at a loss to articulate a line that includes regulation of the entire enterprise of paying for health care, including health care for people who resist buying it, hoping for continued good health, enough savings to cover future expenses, or free care financed by the rest of us."

Then make them buy catastrophic health insurance. You know, real insurance.

Original Mike said...

I hate being pissed off in the morning.

shoutingthomas said...

My experience tells me that the cost and difficulty of obtaining one's own insurance coverage is tremendously exaggerated for political effect.

I've been a contractor for 5 years. I buy my insurance through a group in NYC that was created to serve contractors. I pay about $290 a month for full coverage, without dental. Dental is available, but the cost seems impractical. Better to just pay for services as needed.

This insurance has taken care of my needs. My copays for doctor visits and prescriptions are reasonable.

My premiums are kept in line by opting for what might be regarded as high deductibles for major medical expenses like surgery and hospitalization.

So, I haven't seen the great emergency for health care reform supposedly compelled by the inability of people to find adequate insurance coverage on their own.

And, I get a little tax break on my premiums.

I'm in favor of the government doing nothing unless there is a compelling reason for the government to do something. I don't see it here.

When does this thing hit the Supreme Court?

rocketeer67 said...

"Health care is the one thing that you're tempted to think you can get by without, but you might get hit with a huge expense that you can't possibly cover."

Do you know how much furnaces cost to replace when they break down? They do break down, you know - it's an eventuality, not a "maybe" that it will happen. There are plenty of homeowers who can't possibly cover the expense if they need to. Do you really believe they're gaming the system because they don't have furnace insurance?

AllenS said...

RE: people who don't have health insurance

Well, you could make laws so that doctors, nurses, clinics and hospitals have treat people for free.

Or, you could create laws concerning hospitalization the same way you regulate not having a drivers license -- you don't get to drive.

Henry said...
This comment has been removed by the author.
bagoh20 said...

"...it would preserve the idea that something must be outside of Congress's power."

We have been "preserving" that idea to the point where it IS just an idea. If this law is not beyond congress's power, then really what is? Not long ago it was accepted that this was too far, but when lawyers start talking about any idea that limits government power, that idea disappears under the shadow of a tower of babble.

If this law stands, there will be ,with certainty, laws forcing people to follow particular diets and life styles when we get a little farther down this slippery slope.

There is no principle that lawyers cannot talk away. This is more dangerous than the power of force, since it saps the people of the will to fight back. This is the lawyers ultimate weapon, which they always resort to. Defeating them at that point requires force, devoid of logic, reason, or mercy. In the end it will be the lawyers' fault for telling the king he can remain in power if he just lets them talk long enough.

Henry said...

Is there any reason the government couldn't force all parents to buy life insurance based on exactly the same pro-Obamacare argument? If you claim a dependent on your taxes, your inactivity is a farce.

It's for the children!

Peano said...

Althouse says, ...one could stress the extreme degree of the effect on interstate commerce and the great value of designing a coherent system of paying for health care by taking account of the entire, interrelated system of health care services, including the potential future demands on it that everyone represents, even if they happen to be nonconsumers right now. Why not say that is within Congress's power, yet other things remain beyond its power?

If this case reaches the Supreme Court, and if (I like to dream) Scalia writes the opinion, then you'll get an articulate answer as to why not.

Bart Hall (Kansas, USA) said...

I have two different points, and will submit them as two separate comments.

The first looks to the real problem of the Health Care law, which is that it is primarily intended to create a 'positive' right. You need only examine the European constitution to see where that leads.

In America, with the exception of the right to trial by jury no constitutional right requires anything of anyone, other than that they leave me alone.

Purported 'positive' rights ALL require me to do something for others, or to pay the government to do it on my behalf.

In the specific instance of health, the subject legislation requires me to bear the burden, not only of others' misfortune -- which is true insurance -- but the consequences of their poor choices.

If I am in an auto wreck there is a determination of fault. If I am not at fault, I am not -- nor should I be -- financially responsible for the other party's actions.

The health bill turns that principle on its head, and quite apart from the profound constitutional issues, the inherent requirement that in their premium structures and available deductible levels insurance companies may not reward me (with lower premiums) for healthy choices is astoundingly unfair. But, it's all in the name of "fairness" of course.

What a bizarre concept, that I should have to share, on an equal basis, the cost of health care with some 32-year-old pop-swilling, fried-chicken-scorfing, heavy-smoking, obese walrus that can barely waddle out of her own way.

Even though we're well into middle age (I'm 62), because my wife and I look after our own health we have a $10,000 deductible policy that costs us under $2,000 per year for both of us, and that's with a pre-existing cancer condition.

ObamaCare declares it to be "un-fair" that we enjoy such financial advantage on the basis of personal responsibility.

Unions and unionised workers readily gain waivers from the law. We small business owners cannot. Obama's friends are exempted from the impact, and his political opponents have the rug yanked out from under their own financial prudence.

This law is a political club, nothing more, nothing less. It's the Chicago way.

Motorcycle said...

I'm not versed in the law and I am not prone to hysterics. I'm an engineer who reads a lot of blogs because he's concerned/fascinated about the future of healthcare. But I think I speak for a lot of laymen that if the legal system of this country can contort itself into a position where this sort of imposition on our most basic of freedoms can be considered constitutional then we are all good and truly screwed and the republic as the founders intended may have finally broken that last proverbial staw.

In the mind of people like me, if this grab can be "justified" then can pretty much do whatever they want and the law will be twisted to suit those needs . To hell with the law and to hell with representative government.

But one day, decades from now, when people have had enough, when the middle class in the coming decades decides that it's their turn to start a riot, I think this potential decision will shine brightly as marker in the chain of event that will have led them there. I hope I'm wrong but I doubt it.

Ans I certainly hope that there are five sane justices left on the supreme court.

AJ Lynch said...

Liberals believe dopes like Joe Biden are smart because he is a Dem. Liberals believe inexperienced pols like President Obama are brilliant cause he just has to be. Liberals believe they can construct a 2,000 page law that intrudes on the lives of 310 million people in order to add coverage to 30 million people of which 15 million are illegal aliens and 5 million could afford it but prefer to spend their money on other stuff. Liberals like Althouse believe the federal govt just must know best how to run our lives when it involves a serious matter like this [otherwise we should follow the Constitution].

Quayle said...

"Health care is the one thing that you're tempted to think you can get by without, but you might get hit with a huge expense that you can't possibly cover."

So is a timing belt replacement.

Should congress mandate timing belt replacements at 60,000 miles because the cost of it breaking would have a substantial impact on interstate commerce?

(E.g. I would have to forgo that trip to the Superbowl or cancel my planned purchase of a 60" TV)

Motorcycle said...
This comment has been removed by the author.
peter hoh said...

People who choose "inactivity" none the less participate in our health care system, and contribute to the costs paid by the rest of us.

To quote someone who enjoys a certain amount of respect around here, "I mean, people have access to health care in America. After all, you just go to an emergency room."

This is an extraordinarily ineffective way to provide health care to those who don't have insurance.

These services are expensive, and are delivered without regard to the likelihood that the hospital will receive payment for those services from those who receive them.

Instead, those costs are passed on to the rest of us. It

I'm not arguing that the health care law is a good one, but rather that any cost-effective health care policy will have to address this issue.

Tyrone Slothrop said...

I'm another non-lawyer, and can't always follow legalistic argument. Knowing a little about history, though, I think I can see where state-run health care will wind up. When the argument can be made regarding any kind of human activity, that that activity imposes costs on a public health system, then the activity will be legislated out of existence. It is in this sense that Obamacare empowers the Congress to regulate every aspect of our lives.

PatCA said...

I'm not a lawyer, but right now I think we do have "coherent system of paying for health care." Most of us have insurance and savings and use those appropriately. Some don't and go to ERs when they are sick, and they are treated. Yes, we all pay a premium on our premiums to subsidize that. No one has established a need for a government fix for this program except members of the government. They are acting in their own self-interest.

The escalating costs are in part due to all the third-party government money flowing in; wouldn't a takeover mean even higher costs?

To me, these are just some of the issues that limit a government's ability to "design" a more coherent system than the one we have. It's not possible, unless you believe command economies are better than free economies.

If the government can design such systems, what's next? Housing? Oh, right, they already wrecked that system.

rdkraus said...

The frog has just noticed that the water is about to start boiling.

We've been travelling down this road for decades. Lotta people (like me) have pointed this out. A ruling allowing this law to take effect would be one more small step on top of thousands of others.

Meanwhile, a truly scary aspect of this is that everyone assumes that 4 out of the 9 Justices will say this is ok. That means that 4 out of 9 think that there is virtually no limit to what the Fed's can tell you to do or not do.

There are words for that, but people get all excited if you use them.

buster said...

Judge Vinson explicitly considered and rejected the argument that the line can be drawn according to the importance of the subject of regulation under the Commerce Clause. He said that the importance of the health insurance market gives Congress a *reason* for regulating it, but does not give Congress the *authority* to regulate. I think he is correct for the reasons noted by Lyssa: the criterion of importance is far too subjective to function as a constitutional principle.

Lem said...
This comment has been removed by the author.
Bart Hall (Kansas, USA) said...

Second comment, this time on the question of "inactivity." The problem exists not only at the federal level.

Some years ago I had a substantial tax dispute with a state government which insisted I owed "use tax" on the produce from my substantial garden.

Their position was that because my garden produce had significant commercial value had I chosen to sell it ... my choice to consume it myself was consequently a commercial activity and therefore subject to state sales tax.

I told 'em to go pound sand -- actually I was far less polite than that to the state tax person (something to do with an old Anglo-Saxon word meaning "to plant") -- and not long after moved out of that state, leaving them to harass people more compliant with such idiocy.

Original Mike said...

"Even though we're well into middle age (I'm 62), because my wife and I look after our own health we have a $10,000 deductible policy that costs us under $2,000 per year for both of us, and that's with a pre-existing cancer condition."

REAL insurance is economically sound. The structure of ObamaCare can not possibly succeed without rationing.

Lem said...

If driving a car is a privilege (and it is) the state can regulate every aspect of it including denial.

If Kennedy's interpretation of the Commerce Clause results in favor of Obama Care then we will be closer than ever to a government licencing scheme for the privilege of being alive.

Richard Dolan said...

The constitutional argument that "health care is different" is based on some very shaky economic foundations. It may well be enough to do the trick in the SCOTUS, but there are lots of problems with it.

First, "health care" is not a unitary economic activity: it doesn't come in just one form (life threatening! catastrophic!), and very little about it is different from any other form of economic activity. Lots of "health care" decisions present the same mundane consumer choices as any other form of economic activity -- whether to take the kid to the emergency room when she has a cough, whether to get the generic pill or the name-brand, whether the cure is worth the cost, etc. Ann's post takes as a paradigm a few, relatively rare, instances in which "health care" becomes a critical issue in individual lives -- basically, a policy-by-anecdotes approach -- and uses them as a proxy for a vastly more complex and wildly heterogeneous market that just doesn't fit that model.

Second, pricing mechanisms play the same role in health care that they do in any other market -- allocating resources among potential uses. A key problem in health care markets is that pricing mechanisms have been largely displaced -- it's a right! it's got to be free (i.e., allocation is determined by means other than price)! That approach bends the cost curve, but unfortunately it does so by turning it into an upwards swinging parabola. That may be just a sign of increased affluence -- the greater a society's wealth, the more its members may want to spend on staying healthy. But there is nothing different or special about it as a matter of economics -- contra Ann, health care is not a different form of economic activity. And, like all other markets, allocation by government mandate isn't a solution to the cost problem (if it is a problem) but an excellent way to make it worse.

Others have noted the difference between "health care" and "health insurance" -- again, very different (and internally heterogeneous) markets with different economics.

When constitutional arguments are based on bad economics, you know nothing good is likely to come out of the process. But that's where we are.

Original Mike said...

"I'm not arguing that the health care law is a good one,...

Progress.

Quayle said...

If driving a car is a privilege (and it is) the state can regulate every aspect of it including denial.

Remember that the U.S. Constitution is, first, a restriction on federal power, not the power of the states.

States can do all kinds of things that the federal government can't do (at least they can't if the constitution is honored.)

bgates said...

name the thing Congress couldn't regulate

By happy coincidence, the thing Congress can't regulate is always among the things Congress isn't regulating yet.

Why not say that is within Congress's power, yet other things remain beyond its power?

Because it's not within Congress' power.

bagoh20 said...

"you just go to an emergency room."

This is an extraordinarily ineffective way to provide health care to those who don't have insurance. "


First, the number of people who do this is actually quite small as a portion of health care.

Second, they resort to this because they really need care badly, because this is a terrible way to to get treatment for them. They do get a bill, and are usually pursued.

The alternative is a free to all system. Now, that would be an inefficient delivery system, easy for the patient, but a very inefficient system resulting in regular trips to the doctor for every pain, or just boredom for some. The only way then to control it is through rationing and long wait times. In the end, the worst of both worlds. Poor care and high expense, little innovation.

Bruce Hayden said...

People who choose "inactivity" none the less participate in our health care system, and contribute to the costs paid by the rest of us.

This is the classic arguing from the specific to the general. Some people who chose inactivity here, i.e. not to participate in the health insurance market, cost the rest of us money, so all who do not participate do.

Unfortunately for the argument, it is, as usual in this situation, false. There are people in this country who do not participate in the formal health care system out of religious, moral, or other reasons. And, no, that isn't until they get sick. Rather, some at least figure that if they get sick or injured, and they don't recover, it is God's will. (And, yes, there are many who operate the other way, going to the ER when they are ultimately sick or injured, but our goal here is not to prove the specific, but to disprove the generalization). And, there are those who don't carry insurance because they don't need to financially. Few yes. But they exist, because I have met some.

edutcher said...

OK, so, if the Feds can't make you buy health insurance - and the idea behind the Constitution is that the Feds shouldn't be telling us what to do, does that mean the states can't force us to buy car insurance (I'm thinking 14th Amendment here)?

Hagar said...

Professor,
Can South Dakota require all citizens above 21 years of age to own at least one firearm for personal protection?

Brian said...

@edutcher:
You have no constitutional right to drive. The state builds the roads and legislates who is allowed to drive. They require you to take a test and get a license. Therefore, they can require you to have insurance.

You can choose not to drive, therefore not requiring insurance. This is the crux of the difference; with the health-care law, you can't choose NOT to participate, even if you decide to forego health care for yourself.

Ann Althouse said...

"even if you decide to forego health care for yourself"

And will you hold people to that choice when they show up at the hospital with a raging case of cancer or a gunshot wound to the chest or with a child with 2 broken legs after a car crash? No, we will not. We Americans aren't hardcore enough to do that, which is why the go-it-alone option doesn't compute.

AJ Lynch said...

Bruce:
You are right. There are some religious sects [Mennonites?] that are exempt from paying either the Medicare tax and /or the social security tax. The IRS actually has a form that an employee fills out to certify he meets the exemption criterion.

buster said...

Hagar said:

"Can South Dakota require all citizens above 21 years of age to own at least one firearm for personal protection?"

Yes, unless something in the South Dakota Constitution forbids it. But states are different from the federal government in this respect. States have a general "police power" (i.e., unlimited authority to act for the public welfare, subject only to consitutional restrictions. The federal government only has the specific powers given it in Articles I-III of the federal constitution (i.e., the "enumerated powers"). There is no enumerated powers doctrine applicable to states.

Scott M said...

This is the crux of the difference; with the health-care law, you can't choose NOT to participate, even if you decide to forego health care for yourself.

Don't let Jeremy or Alpha hear you say that. They think everyone is required to buy car insurance so it drives down the cost...duh.

AJ Lynch said...

Go it alone option does not compute? What bullshit- credit card companies and banks charge good customers higher rates to cover their losses to deadbeats. Should Congress write a law to fix that?

Hospitals lose money mainly because most are poorly run. It is not because they give away too much free service to the uninsured.

edutcher said...

Brian said...
@edutcher:

You have no constitutional right to drive. The state builds the roads and legislates who is allowed to drive. They require you to take a test and get a license. Therefore, they can require you to have insurance.

You can choose not to drive, therefore not requiring insurance. This is the crux of the difference; with the health-care law, you can't choose NOT to participate, even if you decide to forego health care for yourself.


Given how spread out things are in most parts of this country and the accompanying paucity of public transport, that's an argument geared only to the Megalopolis of Baaston - DC. Everywhere else a car is a necessity. This is the sort of legal gamesmanship (practiced by SCOTUS, btw) that says pro football is a business, but pro baseball is a sport.

The same idea that's behind ZeroCare is the one behind compulsory auto insurance - you don't have the right to stick the other guy with the cost of your screw-up.

Original Mike said...

"We Americans aren't hardcore enough to do that, which is why the go-it-alone option doesn't compute."

We have welfare now, which is fine with me. You want to mandate catastrophic insurance and argue the Constitutionality of that, fine. But the economics of ObamaCare do. not. work.

Lincolntf said...

Confiscating my money for care I may never need (and obviating a part of my compensation from my employer) is bad enough. Confiscating it for the care and feeding of a massive "health care" bureacracy is a crime.

PatCA said...

I think there is a more fundamental difference between car and health insurance. We purchase car insurance to make whole the anticipated person we may harm one day with our car out of our own negligence. In a way, it's a contract between those two individuals.

The mandatory health insurance provision, OTOH, is an arbitrary levy (tax?) on all individuals to pay for health care for some putative class of people who now are supposedly unable to get it or to purchase insurance. As Richard Dolan put it, though, this is not any established real class, it's a policy-by-anecdote class, and that's the crux of the problem. Once health care or even insurance is thus politicized, it is doomed to political use and abuse.

MadisonMan said...

And will you hold people to that choice when they show up at the hospital with a raging case of cancer or a gunshot wound to the chest or with a child with 2 broken legs after a car crash? No, we will not.

Well, if we did, it would decrease the surplus population. How well that phrase worked for the first person who uttered it in a book!

Hagar said...

If I showed up at the hospital with "a raging case of cancer," I most likely would not receive expensive treatment under Obamacare due to age. As it is, I would not show up for my own reasons.

If I show up with a gunshot wound to the chest, not self-inflicted, I am probably not under my own power, and in any case, there is an argument that I got shot due to lack of adequate police protection, i.e., the government's fault.

Would my homeowners and/or umbrella policy cover that?

If I show up with a child with two broken legs from an automobile accident, I have automobile insurance to cover that.

Lem said...

..We Americans aren't hardcore enough to do that..

We are hardcore enough to do abortions on demand..

But yes I see your point people have to pay for those.

Original Mike said...

We have welfare now, MM. Those people are cared for. ObamaCare proponents argue that their system will reduce it's cost to us. They are wrong. The monster they have built is so much more unsustainable than the current system it should be obvious to a stone.

Rit said...

Why is it always presumed that those without health insurance will get treatment for free? They can be billed and if they refuse to pay their bills then they can be taken to court. Liens can be placed on their property and their wages can be attached. Why this horrible tendency to throw up our hands and sign away our freedoms and liberty because some among us are irresponsible?

Pogo said...

"We Americans aren't hardcore enough to do that, which is why the go-it-alone option doesn't compute."

Arguing from anecdotes again.

Do we really need to change the entire healthcare system, and subvert the Constitution, in order to manage that vanishingly small number of uninsured knife-n-gun club victims and procrastinators with malignancies?

It's the same old lefty straw man, propping up a sad case to suggest that socialism is the answer to all our problems.

There are a hundred solutions to that dilemma, but the socialists want their goddamned power over our lives, and by God they're gonna get it, mostly by doing what politicians do best, writing sentences that are complete bullshit, and claiming they smell like roses.

Original Mike said...

"If I showed up at the hospital with "a raging case of cancer," I most likely would not receive expensive treatment under Obamacare due to age."

Yes. Under our current system, if you've been paying for your health insurance, you will be treated. Under ObamaCare, which you will also be paying for, you will not be treated.

This is fair???

Original Mike said...

"Why this horrible tendency to throw up our hands and sign away our freedoms and liberty because some among us are irresponsible?"

Excellent question.

Lyssa Lovely Redhead said...

"you just go to an emergency room."

This is an extraordinarily ineffective way to provide health care to those who don't have insurance. "


I live in Tennessee, and from what I've seen, the biggest abusers of the emergency room care are TennCare recipients. They have full coverage; cost is not an issue at all, they simply chose not to visit a doctor when others would call it reasonable, or they determine that they need treatment right away (at non-office hours) for, say, cold symptoms (I am not exaggerating, I have seen the ER records detailing ER visits with symptoms of sore throat and cough.)

Whereas, for me, I have to pay an hefty co-pay to go to the ER, so I wouldn't go unless absolutely necessary. And I go to the doctor during office hours if I need to.

I don't think that there's any gov't program that can change this; it's a lifestyle issue (closely tied to the lifestyle choices that place a person in the position of not providing for their own needs and relying on the gov't to provide for them). Gov't can incentivize the lifestyle choices that make it worse, though.

- Lyssa

Richard Dolan said...

Ann: "And will you hold people to that choice when they show up at the hospital with a raging case of cancer or a gunshot wound to the chest or with a child with 2 broken legs after a car crash? No, we will not. We Americans aren't hardcore enough to do that, which is why the go-it-alone option doesn't compute."

A better example of economic policy-by-anecdote would be hard to imagine. Markets are not defined by marginal cases; and it's a bad mistake to think that a solution to a problem exemplified by a marginal case will necessarily make sense in the vast majority of non-marginal cases. You're not going to get very far in analyzing the economics of health care and health insurance by focusing only on the margins.

peter hoh said...

Bart, the state of Kansas wanted to charge you use tax on the stuff you grew in your garden?

California or Massachusetts, maybe, but Kansas?

I'm shocked.

Hagar said...

@Buster,
Fine. So can the Federal Government mandate that we all own at least one firearm for our personal protection?

If not, why not?

edutcher said...

To clarify what I'm saying - everyone here is arguing the law as it stands, which, of course, is reasonable.

But my point is the law, as regards insurance, is hypocritical and unrealistic. Not to mention archaic. I'm sure the idea that driving is a privilege was conceived sometime in the 20s, when most people lived within walking distance of everything they needed.

Those conditions do not obtain anymore.

Clay-ipso Facto said...

AA said: "And will you hold people to that choice when they show up at the hospital with a raging case of cancer or a gunshot wound to the chest or with a child with 2 broken legs after a car crash?"

We also don't refuse emergency services to people who get in a car wreck after choosing not to buy auto insurance. Does this mean we should force everyone to have auto insurance, whether or not they own a car, just because they MIGHT drive, crash, and have large uninsured costs?

After all, there were over 8 million injury accidents involving uninsured motorists last year, just slightly less (near as I can tell) than uninsured ER visits.

Original Mike said...

"Markets are not defined by marginal cases; and it's a bad mistake to think that a solution to a problem exemplified by a marginal case will necessarily make sense in the vast majority of non-marginal cases."

Don't they teach in law school that hard cases make bad law?

Dust Bunny Queen said...

If you don't buy insurance, you're gaming the system, and some of the people who game the system will take advantage of the rest of us who participated. It really is different from housing and food. You've got constant pressure on you to provide for those things.

If you decide not to work and game the system by receiving Welfare, Food Stamps and Subsidized Housing...... aren't you taking advantage of the rest of us who have participated by working?

Using this type of reasoning to force us to buy things we don't want in order to subsidize others, is why lawyers and politicians should be lined up and shot.

Alex said...

The hardest cases MUST make the law for the rest of us. Lefty idealism must triumph. NO matter how many corpses it leaves, it's the GOAL that counts.

Hagar said...

Bart,

How did you find a company (I presume respectable) that will write a policy like that?

Dust Bunny Queen said...

If you don't buy insurance, you're gaming the system, and some of the people who game the system will take advantage of the rest of us who participated. It really is different from housing and food. You've got constant pressure on you to provide for those things.

If you decide not to work and game the system by receiving Welfare, Food Stamps and Subsidized Housing...... aren't you taking advantage of the rest of us who have participated by working?

Using this type of reasoning to force us to buy things we don't want in order to subsidize others, is why lawyers and politicians should be lined up and shot.

Pogo said...

I do believe that lawyers would argue the US Constitution allows Congress to make me eat A Good Diet every day, and document it.

All because someone came to the ER with cancer.

Oh, well. It takes 2 or 3 generations for these socialist abominations to fail, so I'll be dead long before the inevitable revolution and its attendant pain.

So thanks in advance to all those here who favor installing a guarnteed economic disaster and killing off the Constitution. Strike that. I mean reinterpreting it.

We only hurt the ones we love, I guess.

peter hoh said...

Lyssa's point is a good one, which is why I don't support a system that makes health care free.

buster said...

@ Hagar:

I'm not sure. It doesn't follow from the fact that a state can impose the requirement that the federal government can. States have a general police power and the federal government does not. But one or more of the enumerated powers may authorize the federal government to impose the requirement.

More to the point of the the present discussion, states are free (under the police power) to impose an individual mandatre to buy health insurance whether or not the feds can.

This means that arguments like Florida's -- that the individual mandate is tantamount to slavery -- prove too much. The only reason Judge Vinson held Obamacare unconstitutional is that the power to regulate interstate commerce doesn't extend that far. He didn't hold that the mandate is inherently at war with individual freedom. Under our system of government it is not

wind.rider said...

Blogger/Google sure must have a huge appetite. It regularly eats delicious comments, with nary a belch.

Oh well.

Basic point - discussion of the state of current play is superfluous, if one is halted at the determination that the entire O'Care fabrication is beyond the scope, purview, and authority of the Government.

Simply - as a mandate, it requires the insertion of a third party of dubious interest into the decisions and desire of the individual, for wholly fabricated and imaginary rationale and manufactured urgency. It's a fanciful solution seeking out what only a few perceive as a problem, regardless of, and in spite of, wholly unconsidered nor imagined unintended consequence.

Existing, as it does, on the very cusp of the ideological divide of the nation - as to who is 'in charge' of 'taking care' - the individual, or the state. So far, the track record of 'the state' has been at best a mixed bag, and at worst an utter failure of even intent.

tw: shamiesp - the internet version of the sham-wow that routinely wipes away my comments at Althouse's place. . .

Scott M said...

Lyssa's point is a good one, which is why I don't support a system that makes health care free.

Exactly. Our Founders believed that they needed a form of government that enticed bad people to behave well. Free health care has exactly the opposite affect. It entices bad (read as irresponsible, immature, whatever) to act badly (read as irresponsible, immature, whatever).

Pastafarian said...

Maybe I should change my avatar to a Green Bay fudgepacker to fit in around here. Anywho:

Why do you suppose medical care is so expensive in the first place?

Let me rephrase the question: How much would a loaf of bread cost, if we all purchased "bread insurance"?

Shit, my pantry's empty; good thing my employer has been paying the premium for this bread insurance. Here's a nice artisan loaf, that's three times as much as the Bunny Bread; fuck it, insurance is paying for it -- I'll get 3.

If our primary concern was for the economically less-fortunate, we'd ban medical insurance, and we'd shoot all the ambulance-chasing lawyers. Medical costs would plummet.

So how much more expensive will medical care be, when we make damned sure that the 10% or so of the population that's not already participating in either private or government health insurance also signs up?

As far as Althouse's argument that enumerated powers can be stretched to include anything "important" enough -- wow. That's some soft-headed slop reasoning there. I hope that's just saucy pot-stirring, and not her actual opinion.

rdkraus said...

Once NHS is fully installed, and it will be at some point, the way gov't works, when you show up for your "free" health care, first you will have to document your "proper" behavior, that you've been eating in the gov't prescribed way, doing the mandated exercises, taking those medications deemed proper for you by a clerk in the motor vehicle department, and then, after you've been prioritized based on your age, sex, political connections, color, friends in gov't and record of compliance, will you ... maybe get to see a doctor, after you wait for all the people in front of you.

Yes, that is the way gov't works.

Bruce Hayden said...

So, far, and I am only part way through the Commerce Clause analysis, I would call it a very thorough and competent decision. Judge Vinson may ultimate be reversed, but likely not because he was sloppy.

He (like Judge Hudson, but even more so) made a good case that the Individual Mandate was not a "tax", and thus falls under Commerce Clause, not Taxing Power analysis. Congress could have done this as a tax, but all indicia are that they intentionally chose not to. I don't see this as being reversed.

At least this Supreme Court is unlikely to bail out the 111th Congress by saying, ok, sure, you couldn't get it passed as a "tax" for political reasons, but we understand political reality, and will let you slide here. Maybe if President Obama can replace one or two of the more conservative Justices, but not with the current Court.

AJ Lynch said...

Perhaps, recognizing the 50-50 divide between Cons and Libs, it is time for a universal subsidy to all adult Americans. Let's give every adult $1,000 a month tax free and shitcan all the current govt giveaways. Then each of us can spend our own $1,000 as we see fit and we can stop the hand wringing that so and so could not afford healthcare.

peter hoh said...

I would like to see us move away from employer-based health insurance. It's an archaic system that had something to do with tax codes in the fifties. Maybe it worked when most people stayed with one employer for years on end. I'm not sure it's a model that works for most Americans today.

Bart Hall (Kansas, USA) said...

And will you hold people to that choice when they show up at the hospital with a raging case of cancer or a gunshot wound to the chest or with a child with 2 broken legs after a car crash?

Ann -- this has been the law of our land for a quarter century. See Section 1867(a) of the Social Security Act, within the section of the U.S. Code which governs Medicare.

Clay-ipso Facto said...

wind.rider said for wholly fabricated and imaginary rationale and manufactured urgency

HL Mencken said:“The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary.” H. L. Mencken

Just like Ann's imaginary, resourceless, health and auto insurance-less patient at the ER that doesn't have credit risk insurance.

sunsong said...

Interesting discussion. My view is that there is no *need* for a mandate. I think some of these arguments are valid *only* if a mandate is the only possible way to pay for the healthcare law.

But that is NOT true. There is no reason to attempt to stretch the commerce clause until it is no longer recognizable in order to raise revenue. That's what taxes are for. And taxes *are* constitutional.

My guess is that the Congress (Pelosi and Reid) chose not to use Congess' power to tax in order to raise revenue because it would hurt Obama politclaly. So, instead, they chose to attempt to force free people to buy something - which is unprecedented. And unneccessary!

We shouldn't be punished, nor should the Constitution be twisted and distorted unneccessarily in order to save Barak Obama from breaking a politcal promise. Good grief.

Bart Hall (Kansas, USA) said...

Peter Hoh -- the state of Kansas wanted to charge you use tax on the stuff you grew in your garden?

No, not Kansas, which is one reason I live here. The state was -- ta-dah! -- Wisconsin.

Original Mike said...

"I would like to see us move away from employer-based health insurance. It's an archaic system that had something to do with tax codes in the fifties."

Yes, there are a lot of actual reforms that would be benefical.

Bruce Hayden said...

All because someone came to the ER with cancer.

I have always hated this sort of liberal reasoning. They screw up, and don't consider the consequences of what they legislate, and then, need to enact even more onerous laws to correct this.

My mother and I used to have similar debates about motorcycle helmets. Her view was that since when motorcyclists crash without helmets, the state will have to take care of them (assuming away the more likely scenario that they die), and so the state is justified in forcing them to wear helmets, JIC.

My response was - let them die. Darwin, etc. It was only the state feeling sorry for people who couldn't afford, or refused to pay for, health care insurance that caused the problem in the first place.

The alternate solution, all along, has been to liberalize Medicaid, etc. rules just a little bit. The liberals in the 111th Congress didn't want this asserted crisis to go to waste, and so took the opportunity to totally reengineer the health care market. IMHO badly. They may have gotten caught with their pants down here, removing the separability clause from the legislation.

Dust Bunny Queen said...

As far as Althouse's argument that enumerated powers can be stretched to include anything "important" enough -- wow. That's some soft-headed slop reasoning there. I hope that's just saucy pot-stirring, and not her actual opinion.

Correct. Who deems an activity important? Who decides what is important?

It is really really important that we support our lagging sugar industry, therefore.....we all must consume more soft drinks.

The cattle industry is lagging in sales. Everyone eat more liver. Plus, liver is good for you and it is important that you take your vitamins.

Government Motors is unable to dump/sell their inefficent electric vehicles. It is important that we support the myth of Global Warming and prop up the UAW so you WILL buy a VOLT....Comrade.

ANYTHING can be deemed important and we can be forced to buy things under this ridiculous thinking.

Florida (the poster) is right. We will be slaves to the government when they can make us buy or consume things that we do not want. We are already serfs to the government because they steal our money and give it away to cronies and friends.

Slippery fucking slope people.

peter hoh said...

AJ, your plan isn't far from the voucher plan to reform education.

Back when Minnesota had both a surplus and a wacky governor, the Twins were asking for some of that surplus to be funneled to a new stadium. Jesse Ventura suggested that those taxpayers who wanted their rebates to go to the new stadium could mail their checks to the Twins.

Didn't get too many takers.

Original Mike said...

"The state was -- ta-dah! -- Wisconsin."

Crimminy.

AJ Lynch said...

Peter:
Vouchers is the way to go. And yes disconnect from the employer. That might enable a neighborhood's families to opt for the same insurance plan [even though they work at different companies] and the selected insurer might then see a value in asembling neighborhood medical centers to serve its densified customer base.

Original Mike said...

"The alternate solution, all along, has been to liberalize Medicaid, etc. rules just a little bit. The liberals in the 111th Congress didn't want this asserted crisis to go to waste, and so took the opportunity to totally reengineer the health care market."

That's exactly what happened.

Bart Hall (Kansas, USA) said...

Hagar -- How did you find a company (I presume respectable) that will write a policy like that? [$10 K ded for < $2K per year for both of us, cancer history]

Easy. Blue Cross / Blue Shield of Kansas City.

FWIW, or premium has jumped by over 50% in the last two years, not because of age brackets, but because (first) of legislation requiring coverage of mental, emotional, and addictional 'health,' and then this year because of already imposed requirements of ObamaCare, notably removal of lifetime caps.

BCBSKC writes policies in about ten counties on both sides of the Kansas / Missouri border.

Missouri has a "guaranteed issue" mandate, which is what ObamaCare will require for the entire nation: that insurance companies must issue policies regardless of health or pre-existing conditions.

Premiums on the Missouri side are significantly more than double what they are here, for the same coverage.

True medical insurance is intended to keep a major accident, injury, or illness from bankrupting our business and family.

ObamaCare is designed primarily to allow a bunch of irresponsible slobs, most notably White Trash and their urban analogue, Black Trash, to avoid the consequences of their miserably non-existent habits of personal health and responsibility.

It is worth noting that one key aspect of ObamaCare is the elimination of Part C Medicare, which is essentially a voucher system that would have allowed me to continue my coverage with Blue Cross.

In three years I shall be forced -- on penalty of losing all my Social Security benefits -- to enroll in the appallingly bad Medicare system, and at a higher premium than I'm paying now.

You wanna convince me government involvement in health is a good idea? Make what government are ALREADY doing -- Medicare, Medicaid, Indian Health Services, and the Veterans Administration -- shining examples to be imitated ... instead of avoided whenever possible.

Lincolntf said...

If you don't like receiving health insurance from your employer, don't participate in the plan. Good luck getting them to swap your coverage for an equivalent pay bump, though.

Lem said...

Rush likens this ruling to "another bomb" in the arsenal..

Lyssa Lovely Redhead said...

Lyssa's point is a good one, which is why I don't support a system that makes health care free.

Thanks, Peter Hoh! Out of curiousity, what system do you support? (other than breaking the employer connection, which, BTW, I completely support.)

Timon said...

"If you don't buy insurance, you're gaming the system, and some of the people who game the system will take advantage of the rest of us who participated."

I was certain that most people who go w/o health insurance do so because they can not afford it, and therefore are not gaming the system. Is there an argument that is not based on slander?

Original Mike said...

"True medical insurance is intended to keep a major accident, injury, or illness from bankrupting our business and family. "

ObamaCare outlaws true medical insurance.

Chip S. said...

One of the apparently incorrect stereotypes of lawyers is that they love to haggle endlessly over the precise meanings of the words they use. Yet here we have an eminent law professor writing something as sloppy as this:

"...the great value of designing a coherent system of paying for health care..."

which is used to justify the minute regulation of a large industry by an entity that has no claim whatsoever to competence.

What, exactly, do you mean by "health care," professor? Do you mean the absolute latest in technological wizardry? Do you mean the services of the most talented 1% of surgeons? Or do you mean something more along these lines?

These questions are answered every day right now by our current system--by health-care professionals, insurers, and patients. I do not find this system to be "incoherent." Most of us understand how these questions will be answered when the federal government's reach is limitless, and that system, too, will be "coherent." It just won't be as good.

Alex said...

Why don't corporations stop health-insurance benefits? There is nothing in the law that requires them to offer it.

peter hoh said...

Lyssa, I think people ought to be in charge of making their health care spending decisions.

In theory, I like the idea of high-deductible insurance with medical savings accounts. Ah, scrap that. I don't like medical savings accounts. Too much nonsense with the pre-tax income.

In my simplified tax plan, medical expenses wouldn't be tax-deductible, either.

But we're kidding ourselves if we think that high-deductible plans are going to cover any and every expensive treatment out there. Plans are not likely to pay for experimental treatment, or treatment that has marginal impact.

I suppose people could sign up for a plan that would cover every imaginable treatment. Fine. Let the market determine that rate.

MikeR said...

Given the vast number of conservatives who think that the Commerce Clause cases were wrongly decided, and given that they do seem to be a real stretch on the simple language of the constitution - what are the chances that the Supreme Court will undo all that, instead of following Judge Vinson? And is it true that this kind of thing becomes more likely, the more we see decisions on the HCR bill providing cover by moving to the "right"?
Inquiring minds want to know.

Jay said...

And will you hold people to that choice when they show up at the hospital with a raging case of cancer or a gunshot wound to the chest or with a child with 2 broken legs after a car crash? No, we will not. We Americans aren't hardcore enough to do that, which is why the go-it-alone option doesn't compute.


Um, how about we accept the fact that this happens and not pass a 2,000 page "health care reform bill" pretending it addresses the scenario you outline?

Lyssa Lovely Redhead said...

Why don't corporations stop health-insurance benefits? There is nothing in the law that requires them to offer it.

There's not (yet, if I understand correctly), but it is financially beneficial to them to do so, rather than paying straight salaries, due to the convoluted tax code. (Insert plug for the FairTax here).

Plus, we, as a culture, have determined that employers should do this and made it difficult to get insurance without the employer (this can, and should, be changed); therefore, it is difficult for an employer to get good employees (the sort that could get a job elsewhere which included insurance) without offering that benefit. (They could just offer more money, but, see above, re: tax code).

Damon said...

Ann writes "...since one could stress the extreme degree of the effect on interstate commerce and the great value of designing a coherent system of paying for health care..."

Ann's argument begs the question. Regulating interstate commerce may not give the government the authority to create the coherent system in the first place. There may be value in a coherent system, but the means used to get it must be within government's enumerated power.

murgatroyd666 said...

rdkrause wrote:

Meanwhile, a truly scary aspect of this is that everyone assumes that 4 out of the 9 Justices will say this is ok. That means that 4 out of 9 think that there is virtually no limit to what the Fed's can tell you to do or not do.

There are words for that, but people get all excited if you use them.


What he said.

Ann Althouse wrote:

"even if you decide to forego health care for yourself"

And will you hold people to that choice when they show up at the hospital with a raging case of cancer or a gunshot wound to the chest or with a child with 2 broken legs after a car crash? No, we will not. We Americans aren't hardcore enough to do that, which is why the go-it-alone option doesn't compute.


Oh, my! I see what you're doing here! This is some of that "trolling" stuff, ain't it?

Alex said...

We have to ask ourselves how did we get here and how do we walk back from it.

Bob Ellison said...

The comments on this thread are very good indeed, especially because there is plenty of not-strictly-lawyerly analysis.

The Professor seems both troubled in some respects by the Admin's case for the individual mandate and simultaneously convinced that it is probably good enough to pass muster in the SCOTUS, for sound reasons.

That combination stems, I think, from a little too much conviction in the basic premise of Obamacare: that we're all in this health-care/health-insurance (@Original Mike, I agree with you on that important distinction), and we all want to do whatever is necessary to keep anyone from falling out of it, so Obamacare is both justifiable and Constitutional.

Yes, those laws requiring emergency rooms to take all comers are good and popular, and hospitals and doctors are stretched by them. But they are not sufficient for such an un-American concept as the individual mandate. As others above have pointed out, the "gaming the system" argument is nonsense. That's what the free market is all about. Let 'em game.

That's what it is: un-American. It is an existence tax. Years ago we figured out that poll taxes were similarly awful. Can't we admit the same on this monstrosity?

Hagar said...

@Bart,
Thanks.
It's getting a little late in life, but I might be interested in something like that, so maybe I'll bestir myself to see if it is still available here from some outfit or other,

I had BC/BS Arizona through a previous employer, from which I just vaguely remember a long and unpleasant argument, that wound up with me getting tired of it and wowing never to have anything to do with Bc/BS again.

FWIW, I am not enrolled in Medicare - except a part B, I think, which does not cost me anything, but covers me in case I have to be hospitalized, and which the guy told me I could not escape - so I do not think you have to give up your insurance - which does indeed sound better - in favor of theirs when you sign up.

Wv: cardia - how appropriate for the thread!

MadisonMan said...

The state was -- ta-dah! -- Wisconsin.

Good Lord. Never heard of that happening before. Wonder if it still goes on.

Hagar said...

Wait a minute.
Is it not the situation that if Obamacare is upheld, the insurance companies will no longer be allowed under the law to write such policies as described by Bart above?
So, it is pointless for me to waste much time and effort looking for that, isn't it, since the companies and I both will want to wait and see what will happen when the other shoe drops, and I might well be gone by that time anyway?


WV: slyzer - an Adm. lawyer.

Original Mike said...

"Is it not the situation that if Obamacare is upheld, the insurance companies will no longer be allowed under the law to write such policies as described by Bart above?"

Yes. Bastards.

Alex said...

What irritates me about this is that SINGLE PAYER would have given no choice for the people and that wasn't even put on the negotiatio­n table. To me, after working with private insurances for families for over 20 years, single payer IS THE ONLY ANSWER as long as health insurance is for profi,t market driven.

That's from the Huffington Puffington Post.

peter hoh said...

Bob Ellison: That's what it is: un-American. It is an existence tax. Years ago we figured out that poll taxes were similarly awful. Can't we admit the same on this monstrosity?

We had to pay an existence tax when we lived in Pennsylvania. They didn't make a big effort to notify you about it, but there was a cottage industry for lawyers collecting the bill (with additional fees) if you forgot to pay it.

Alex said...

"states rights" is the rallying cry for the slavers.

murgatroyd666 said...

If I were Justice Alito or Justice Kennedy or Justice Roberts or Justice Scalia or Justice Thomas, I would be rather nervous for the next couple of years ... maybe I'd even hire a private bodyguard.

It's the Chicago Way.

Almost Ali said...

The following should run Obamacare to ground:

Vinson opinion; Page 42: "It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third party
merely by asserting --- as was done in the Act --- that compelling the actual transaction is itself “commercial and economic in nature, and substantially affects interstate commerce” [see Act § 1501(a)(1)], it is not hyperbolizing to suggest that
Congress could do almost anything it wanted. It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing
to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power” [Lopez, supra, 514 U.S. at 564], and we would have a Constitution in name only."

Dust Bunny Queen said...

I am not enrolled in Medicare - except a part B, I think, which does not cost me anything, but covers me in case I have to be hospitalized, and which the guy told me I could not escape - so I do not think you have to give up your insurance - which does indeed sound better - in favor of theirs when you sign up.

@ Hagar

I think you need to do some research

Medicare Part A is no cost IF you have worked enough quarters/paid into it to qualify. It covers practically nothing

Medicare Part B is a cost to you. Part B is about 96.40 (in 2010) a month and covers just a wee bit more, but not much.

While Part B is voluntary there is a penalty charged if you don't enroll when you are first eligible. "For each 12-month period you delay enrollment in Medicare Part B, you will have to pay a 10 percent Part B premium penalty, unless you have insurance from your or your spouse's current job."

When you enroll in Medicare if you have private coverage, the insurance company will not insure you any longer. You cannot get private major medical insurance after 65. Unless...If you are still working at age 65 and enrolled in a group plan you can continue with your group coverage

If you want to get a Medicare Suppliment plan for full coverage, you MUST enroll in Part B.

Don't even get me started on Part D

The rules are convoluted and confusing.

Anyone think Obamacare would have been any better or clearer? Ha!

Hagar said...

DBQ,

So it is Part A that I could not escape.

And betwen you and the Original Mike above, I am SOL.

What scares me is the possibility of a stroke that will leave me witless and helpless at the mercy of the SOB's, and it seems that all I can do is cross my fingers and hope for a heart attack.

Timon said...

""states rights" is the rallying cry for the slavers."

Not this.

Sloanasaurus said...

If you don't buy insurance, you're gaming the system, and some of the people who game the system will take advantage of the rest of us who participated. It really is different from housing and food. You've got constant pressure on you to provide for those things.

I think Althouse is off-base on this one.

It's only "gaming the system" because the government has decided under another set of laws to require that people get care even if they have no money. There is no constitutional right to medical care. It is provided for free only because there is a law that is passed that says so. You cannot pass a law that is allowed under the constitution in one instance and then argue that it is because of that law that other invald laws also be constitutional.

For example, if the government passed a law that requires all businesses to produce weapons, you then can pass another law forcing involuntary servitude in order to carry out the first law.

Alex said...

It's not possible to "game" a system that is not free market to begin with. Yeah even medical care should be subject to unfettered free market economics. No pay, no care!

mtrobertsattorney said...

Ann's argument demonstrates the problem with pragmatism in constitutional law.

In the Flordia case, her argument is that a particular piece of federal legislation should be exempt from the general rule of constitutional law that inactivity is not commerce becuse 1) the legislation is important, of "great value" and "coherent", and 2) the legislation prevents some citizens from "gaming" the system at the expense of others. As for what kinds of other inactivities are outside the Commerce Clause, and why, is left for another case and another day.

Of course, whether a particular piece of legislation is of "great value" and "coherent" are wholly subjective matters. (As an aside, whether Obamacare is "coherent" is an open question.")

But this level of subjectivity at a constitutional level will not be tolerated as so sooner or later the Court will have to come up with a set of objective rules to determine the "value" or worth of legislation as well as its "coherence". And so a series of new and complex general rules will have to be created, refined and re-refined and so on, and so on.

Unpredictibility and confusion will result. How, for example, would this pragmatice approach deal with legislation that mandated everybody buy a health club membership and use it? Or legislation the mandates a particular kind of diet, or penalizes (or taxes) overweight individuals on the ground that their lifestyles are "gaming" the health care system?

The problelm with pragmatism in judging the constitutionality of legislation is that it doesn't work.

Sloanasaurus said...

Perhaps the only way to have a "national health care system" is to do medicare for all - where people are taxed by the government and care is provided by the government. Forcing people to buy private insurance is not constitutional.

Currently, having medicare for all is not possible politically.

Alex said...

Sloanasaurus - single payer is not Constitutional either. But it's going to be forced down our throats along with everything else we abhor.

Fen said...

"states rights" is the rallying cry for the slavers.

Not when the Slavers are Socialists.

Fen said...

But we both agree that slavers deserve to be shot down in the street, yes?

Sloanasaurus said...

These social mandates always fail anyway. It was Augustus who decreed laws requring that men marry or else pay financial penalties in 17 BC. The law was a total failure. (Congress could also pass such a law under the Obamacare logic). Congress could also mandate a one-child policy under the Obamacare logic and force women to have abortions (or pay a penalty or be imprisoned).

Jay said...

If I were Justice Alito or Justice Kennedy or Justice Roberts or Justice Scalia or Justice Thomas, I would be rather nervous for the next couple of years ... maybe I'd even hire a private bodyguard.

It's the Chicago Way.


What about Vinson?

It took a great deal of courage to do this given how "tolerant" leftists are when things don't go their way...

Almost Ali said...

I believe Ann's argument requires a living constitution, actually, an organism which eventually bears little and no resemblance to its original self.

Meanwhile, people have been living longer and longer, thanks largely to the absence of government interference.

Sloanasaurus said...

Sloanasaurus - single payer is not Constitutional either. But it's going to be forced down our throats along with everything else we abhor.

It wouldn't be single payer in the sense that people pay in specifically to an insurane system, it would be the government providing medicare to all and then the government taxing everyone.

Of course this would fail eventually as the medical system would be come class based, as the good doctors would all work outside the system.

Crimso said...

"Good Lord. Never heard of that happening before. Wonder if it still goes on."

There's a simple way to avoid it: don't plant a garden. But wait, that's inactivity...so you should be taxed on the garden you would have grown, or perhaps even be forced to plant a garden and then make the produce available for sale. If you grow it, but don't sell it, you still have to pay. But all people, sooner or later, must eat, so you are undeniably active even if you are not.

Think of the many things that all people eventually must use. Begin investing in production of such items, because the government wille eventually compel everyone to buy them. I'm thinking dictionaries, myself. But Althouse (if I understand correctly) thinks there is indeed a line past which the government cannot go. So I have to figure out on which side of the line dictionaries will eventually fall.

MikeR said...

" 'maybe I'd even hire a private bodyguard.
It's the Chicago Way.'
What about Vinson?"

Could be, but that's a different idea. Vinson is done, he has decided his case. The first post is pointing out that liberals can improve their chances before the fact by getting rid of a couple of conservative justices.

Alex said...

It wouldn't be single payer in the sense that people pay in specifically to an insurane system, it would be the government providing medicare to all and then the government taxing everyone.

No. Forcing me to pay into a system is not conducive to FREEDOM!

Mick said...

The commerce clause is about regulating the MECHANISMS of trade, such as Interstate fees, Maritime Laws, Weigh Stations, Laws about Bankruptcy and Fraud, Truth in Lending, etc in the Original sense. It is not about forcing ACTUAL Microeconomic Transactions. That would be against the Natural Law of self determination. The Commerce Clause is ABOUT FACILITATING Commerce. It is not about forcing WE the People to DO anything.

The rationale for the MANDATE in the HC Law is to "Lower Costs" (which is total nonsense) by making sure everyone is in the "pool" (Economies of Scale). Well Economies of scale apply to just about ANYTHING.
If the government wanted to reduce Oil Energy Consumption it could mandate that EVERY homeowner buy a solar water heater for instance. The mass production and mandatory market would conceivably lower the costs of producing Solar panels, and thus make it "cheaper" than oil.

Besides the absurdity (which the law profession fails to grasp) of the thought that Government can force me to buy a product simply for living, is the FACT that the Multiple Agencies and extra Government workers getting inflated Public Union Fees that would be created to service this monstrosity would certainly negate ANY economies of scale. The Government doesn't do ANYTHING cheaper or more efficiently. The basic problem of why this is even considered comes down to Lawyers playing Telephone w/ the Constitution for 230 years. The plain meaning has transformed to something entirely different.

This Usurper Administration was Bitchslapped in the previous election, mainly because of this law, yet they are still trying to ram this NONSENSE down our throats, and are talking about IGNORING this Federal Judge. I'm sharpening my pitchfork.

They certainly can't use the N&P Clause and the power to Tax to get around the precedent of expanding the Commerce Clause against the natural right of self determination of We the People.

Of course there are ways to reform HC w/o forcing We the People to do ANYTHING. Like allowing more competition over state lines (the true use of the commerce clause) and limits on TORT, but god forbid any of you lawyers be in favor of that.

This "Bill" is written BY LAWYERS for lawyers who view the Constitution as only silly putty that they can mold any way they want.

Like Trooper York said yesterday, G. Washington would grab all these congress people (and lawyers) by the ears and smack their heads together if he saw this today. DISGUSTING.

Rialby said...

Assertion: Not having children deprives the state of tax revenue therefore refusing to have children is a form of economic inactivity that can be and taxed by the federal government.

New law: Any woman who decides not to have children should pay to the state an additional $500,000 over the course of her remaining years due to the revenue (offset against estimated cost) that her decision has deprived of the state.

Lyssa Lovely Redhead said...

Hey MICK,

DO you think that if YOU use a lot of Capital WORDS then maybe people will finally START listening TO you?


Just WONDERING,

Hugs and kisses,

LYSSA

I already know that I'm super secret usurper supporter who has 14 children with a non-American husband and plans for everyone of them to be President someday, or something, so there's no need to point that out today.)

dick said...

IANAL but if the interstate commerce part of it were so important then the law should have done something about interstate purchase of health insurance. Since they did not, then it seems to me that interstate commerce was not an important part of the consideration of the HCR law. I think you are basing your opinion on something that is not a part of the law and making it extensible. If that is true then you are opening up the Pandora's Box of Congress claiming anything is required and therefore they can make us buy whatever they want. You are claiming that this case is different but how do you stop them making any case they choose "different." Just does not compute for me.

Mick said...

Blogger Lyssa Lovely Redhead said...

"Hey MICK,

DO you think that if YOU use a lot of Capital WORDS then maybe people will finally START listening TO you?


Just WONDERING,

Hugs and kisses,

LYSSA

I already know that I'm super secret usurper supporter who has 14 children with a non-American husband and plans for everyone of them to be President someday, or something, so there's no need to point that out today.)"




I'm always amazed at how Sporadic Capitalization gets under the craw of certain indignant people. But I digress. I'm sure that for those that have reasoning skills and LURK here, I have taught them quite a bit about A2S1C5. Afterall this is a top readership "law blog".

BIG wet sloppy kisses and a Reach-arounD,

Mick

Mutaman said...

Proving yet again: its better to know the juge than to know the law.

Cedarford said...

Vinson decides that Congress cannot reach inactivity, basically making the simple and straightforward point that we have a system of enumerated powers, and if Congress could reach inactivity because of its economic effect, then it would seem that Congress could regulate everything. There has to be some limit, so the line should be here.......

---------------------------
While it sounds fine to the Right Wing...let me suggest that traditional conservatives have always believed in a social contract that discourages inactivity in favor of the common good under a ruled and ordered society.

Every society has grappled with parasitism. The obvious fact people realize that inactivity is rewarded if others pick up the slack. Society adapting coercions to discourage parasites.

The ideal for many in a war or national emergency is to be inactive. Let others join and fight in an Army, die and suffer instead of them. They do nothing, they reap the benefit.
Conscription forces an end to inactivity.
At a primitive societal level, lazy women cannot sit on their asses while others work to feed the lazy woman;s children.

Without some coercion on healthcare - assuming a mandate to treat all still exists - you create a huge incentive in the young and lower classes , even in the mobile, transnational rich careful to maintain no legally seizable assets - to scam the system.
Why would a young person want to spend a cent on health insurance if they could spend that money on fine dining, toys...as long as they were careful not to maintain seizable assets...no savings other than salted away cash, gold..own no stocks or property in the US but have undeclared assets overseas until they were 50 or so..

MadisonMan said...

There's a simple way to avoid it: don't plant a garden.

As if that'll happen.

This is off-topic, but college applications/acceptances are getting me thinking: Why aren't scholarships taxed? The daughter was offered a ~$17K/year scholarship at one of the schools that accepted her. My thought: Why don't they just reduce the tuition of everyone and do away with scholarships? Taxing a scholarship would certainly be a way to drive schools in that direction. They are essentially giving me $17K that I give right back to them.

I've some friends who work at a school that still gives big tuition breaks (3/4 off!) to staff/faculty kids who enroll. Why isn't that taxed too? (Especially since this is in PA, a state with a dreadful balance sheet).

You're probably thinking I'm just another liberal who wants high taxes, but the truth of govt is that everything is taxed -- why the special exemption for scholarships/awards? In truth I don't mind high taxes as long as they are spent wisely. That's where all governments fail me.

Maguro said...

.

If governments consistently fail to spend wisely, perhaps high taxes aren't such a great idea after all?

murgatroyd666 said...

Back in the '80s William F. Buckley wrote a column in defense of the First Amendment, in response to politicians who wanted to carve out some new exception that gave the Feds the power to regulate us in some new way. Buckley posed a philosophical question: if the people who were claiming that the text meant something other than its plain meaning -- that "Congre┼┐s shall make no law" actually did allow Congress to make new laws in that area -- how would they have expected to Founders to have written the text so it would have only its plain meaning of "make no law"?

Buckley's answer was to re-state the text of the Amendment, followed by:

"AND DAMN IT, WE REALLY MEAN IT!"

That seems like a good test to apply to the Commerce Clause. How would the Obama Administration expect the CC to read if it were to cover only actual commerce of actual goods and services among the several states?

And for that matter, if the Commerce Clause covers "economic activity" in addition to actual commerce -- and especially potential economic activity in addition to actual activity -- they why didn't the Founders write it that way?

Jason said...

You know, you can always tell who the liberal in the room is, because he's the one who doesn't know what the facts are. It's like watching turkeys gawking at the rain until they drown themselves.

Fact: The IRS does, in fact tax scholarships. There is an exemption if you are in a degree program, but only if you spend it directly on tuition and course fees. Anything that goes to room and board and living expenses is taxable.

Admin said...

The abundance of interesting articles on your site amazes me! To the author – good luck and new interesting posts!
Cheap car insurance San Francisco

Bruce Hayden said...

If governments consistently fail to spend wisely, perhaps high taxes aren't such a great idea after all?

Why would anyone in their right mind ever assume that governments, and in particular, our federal government, could spend wisely?

There are a lot of reasons that them spending money wisely just isn't plausible. One is that they lack sufficient information, at least in comparison to markets.

But maybe worse, is the problem of rent-seeking. All those ear-marks? Crony capitalism? Many, if not most, of the ObamaCare waivers? Many of the loopholes and incentives in the tax code? Most are the result of someone or another rent-seeking - figuring out that they can do better financially by paying lobbyists and buying legislators (and in the case of GE, the Administration) than competing in the marketplace.

In short, the system is rigged to fail, but those on the inside are always going to get rich first.

pavlova8 said...

The legislation was duly enacted by both the House and Senate, the elected representatives of the people and signed into law by the President of the United States, who was elected by a substantial majority of the American people

Alex said...

pavlova8 - so was Jim Crow. Laws enacted by the Congress & President do not imply Constitutionality.

Wylie E. Coyote said...

"If you don't buy insurance, you're gaming the system, and some of the people who game the system will take advantage of the rest of us who participated"

Well if this is the case, isnt "the system" at fault that allows the individual to pass on the costs?

Liberals forced into law their version of "compassion" by forcing emergency rooms to provide medical upon demand regardless of ability to pay. They created the loophole, and now are using the predicitable consequences of their government-enforcement of their view of "compassion". In other words, the Liberals previous bad government intervention into the medical market created the "cost shifting" issue that they now cite as the need for their huge big government takeover of medical care and medical insurance!

As a practical matter, out of the 2.1 trillion dollars spent on medical care in this country, the cost of so-called "uncompensated" emergeny room care represents less then 1% of this total cost (88 billion dollars)!

So enacting a huge government run entitilement that costs over 200 billion per year and will hike insurance premiums multiple thousands per year over and above what would normally happen makes zero sense from a economic or public policy perspective.

Unless your goal is something more then providing medicare or reducing the cost of medical insurance. Which in this case, I suspect it is.