US healthcare: a post mortem

[Cap'n Refsmmat]

My response to this, though, is that it's shown fallacious by current history. Currently government DOES mandate insurance purchase for autos and DOES mandate insurance purchase for homes. These mandates are at the state level, but state level laws must still exist within the confines outlined in the federal constitution, and the point of focus is on the mandate itself, not what is being mandated. Since these state level laws have been demonstrated constitutional, and within the parameters of the US constitution, my contention is that so too will health insurance mandates.

 

This is not strictly true. Individuals are guaranteed protections against rights violations from both the state and federal government (by the 14th amendment), but specific restrictions of the federal government's power do not apply to the states.

 

For example, all of Article 1 Section 8 enumerates the powers available to the federal government, but does not say anything about the powers of the state governments. It does not apply to them.

[jryan]

My stance is that this will never happen, in much the same way that the requirement to buy auto insurance and the requirement to buy home insurance are not unconstitutional. Those are both mandated by the government, and are perfectly constitutional.

 

The automobile insurance example fails on two fronts.

 

First, nobody is required to buy a car, so the mandatory nature of of auto insurance is attached to the freedom to buy, or not buy, a car.

 

Second, mandatory purchase of health insurance is also not like mandatory auto insurance because the auto insurance mandates are a STATE law, not a federal one.

 

By the way, it's not illegal for states to mandate the purchase of health insurance. This is the central function of the Massachusetts insurance reform. Which is apparently not against the Massachusetts constitution.

 

We'll see what happens, though. I concede the possibility of being wrong.

 

It could go either way, but I think there are strong grounds for overturning that bit of the law which in turn would make the rest of the bill completely unworkable.

 

I would guess that the Federal Government will defend their stand on "human rights" grounds, arguing that health care is a right. This would grant them precedent via the Slavery argument, which was arguably a matter of Federal mandates on state commerce.

 

But the inalienable right argument has a serious downside to it in that by arguing for the bill on those grounds they will lose their ability to argue that the federal government can deny any health care coverage at all. Due process for denying individuals these rights would be rather onerous.

[toastywombel]

The automobile insurance example fails on two fronts.

 

First, nobody is required to buy a car, so the mandatory nature of of auto insurance is attached to the freedom to buy, or not buy, a car.

 

This is a good point, and it makes health insurance a little different from car insurance, however, I do not support insurance as far as health goes really at all.

 

But, people are required car insurance so that if they get into a wreck with other cars, their insurance can cover the other cars' repairs. If everyone can have health insurance that will insure that less people will get sick through the transfer of diseases, because now everyone is getting treated, which in turn can lower costs over time.

[iNow]

I agree, but the point is that lower costs won't motivate most healthy people to purchase insurance in the first place. While lower costs are good, no cost is as low as no insurance whatsoever... zero cost.

two points here:

 

1. I don't see how you're forming your opinion on this one. Why wouldn't healthy people buy insurance if costs came down?

My guess? Maybe because they consider themselves healthy and are perfectly willing to take the risk of not carrying coverage (much like they do now). I would further suggest that this is basic human nature... that they would rather use their limited cash resources to buy a Wii or a flat screen or a 12-pack or something else which provides instant gratification.

 

 

I think if most people had lower cost catastrophic insurance available to them, they'd buy it and choose to pay for normal, routine care out of pocket.

I don't think you can reasonably make that assumption. Sure, it might happen, and there are certainly people right now who simply can't afford it yet want it who would maybe take action after a given price point was reached, but I think that's a stretch to suggest "most people" would rush out to make such a purchase unless it was mandatory.

 

 

2. There's no such thing as a free lunch. Zero cost care is not zero cost. If there's free (to the consumer), quality health care available, can't you see how that would be overused and abused... and therefore made very expensive to tax payers?

I don't really buy that myself. Sure, some people will abuse the system, but when I do the mental calculations on this it is clear in my mind that the net benefit and savings FAR outweighs those minor inefficiencies from people overusing or abusing the system. We can also help fix that issue with intelligent regulations. Either way, that is an argument more against universal care, and that's not what's on the table right now.

 

Just to clarify... I was referring to those "healthy" people who opt not to buy health insurance... How they get sick and land in the ER for catastrophic care... and how the ER treats them by law... and that treatment is at enormous costs since the care is for catastrophe and not prevention... and how those costs impact the rest of us who are responsible enough to carry consistent coverage... since the costs to the ER get passed on to the insurers... the insurers who set our premiums at a level which ensures their continued operation and profit.

 

Simply, by mandating coverage, the risk pool is spread, has a higher percentage of healthy members who will cost less, which ultimately reduces the individual cost of coverage to each of us... sick or otherwise. You have to acknowledge, we already pay for people who get sick and don't have coverage. The proposal here is just to do it in a smarter way at a lower cost.

 

 

Once again, sorry about responding to points you didn't make.

No worries.

Edited March 23, 2010 by iNow

[ecoli]

My guess? Maybe because they consider themselves healthy and are perfectly willing to take the risk of not carrying coverage (much like they do now). I would further suggest that this is basic human nature... that they would rather use their limited cash resources to buy a Wii or a flat screen or a 12-pack or something else which provides instant gratification.

Most healthy young people don't need coverage for routine stuff anyway. That's why they should be allowed to purchase insurance for catastrophic events only.

 

 

I don't think you can reasonably make that assumption. Sure, it might happen, and there are certainly people right now who simply can't afford it yet want it who would maybe take action after a given price point was reached, but I think that's a stretch to suggest "most people" would rush out to make such a purchase unless it was mandatory.

I think it's useless to comment further on this. Since neither of seem to have data and it's just conjecture.

 

I don't really buy that myself. Sure, some people will abuse the system, but when I do the mental calculations on this it is clear in my mind that the net benefit and savings FAR outweighs those minor inefficiencies from people overusing or abusing the system. We can also help fix that issue with intelligent regulations. Either way, that is an argument more against universal care, and that's not what's on the table right now.

We obviously have different priors when it comes to this issue. That's ok, just interesting to see.

 

 

Simply, by mandating coverage, the risk pool is spread, has a higher percentage of healthy members who will cost less, which ultimately reduces the individual cost of coverage to each of us... sick or otherwise. You have to acknowledge, we already pay for people who get sick and don't have coverage. The proposal here is just to do it in a smarter way at a lower cost.

This is a fair point, but I *think* your assumption is that cost per person wouldn't rise if everyone was on the same system. I don't think this is the case. As demand for care gets artificially inflated (from a public option or single-payer) cost will rise, effectively canceling out cost sharing.

 

I do believe this is what we're seeing in other countries, but I'll try to gather some sources on that.

[iNow]

The automobile insurance example fails on two fronts.

 

First, nobody is required to buy a car, so the mandatory nature of of auto insurance is attached to the freedom to buy, or not buy, a car.

 

Second, mandatory purchase of health insurance is also not like mandatory auto insurance because the auto insurance mandates are a STATE law, not a federal one.

This is, AFAICT, rather irrelevant to the point. Congress has the authority to regulate commerce, and this has been supported time and again by SCOTUS. If citizens refuse to purchase insurance, it raises rates on other citizens, and therefore impacts commerce directly and falls well within congressional power.

 

 

In hopes of moving beyond my example of the auto mandate, I'll share the below interesting exploration of the question of mandate constitutionality:

 

http://www.thehealthcareblog.com/the_health_care_blog/2009/12/is-it-unconstitutional-to-mandate-health-insurance.html

Is it unconstitutional to mandate health insurance? It seems unprecedented to require citizens to purchase insurance simply because they live in the U.S. (rather than as a condition of driving a car or owning a business, for instance). Therefore, several credentialed, conservative lawyers think that compulsory health insurance is unconstitutional. Their reasoning is unconvincing and deeply flawed.

 

<...>

 

Constitutional attacks fall into two basic categories: (1) lack of federal power (Congress simply lacks any power to do this under the main body of the Constitution); and (2) violation of individual rights protected by the “Bill of Rights.” Considering (1), Congress has ample power and precedent through the Constitution’s “Commerce Clause” to regulate just about any aspect of the national economy. Health insurance is quintessentially an economic good. The only possible objection is that mandating its purchase is not the same as “regulating” its purchase, but a mandate is just a stronger form of regulation. When Congressional power exists, nothing in law says that stronger actions are less supported than weaker ones.

 

An insurance mandate would be enforced through income tax laws, so even if a simple mandate were not a valid “regulation,” it still could fall easily within Congress’s plenary power to tax or not tax income. For instance, anyone purchasing insurance could be given an income tax credit, and those not purchasing could be assessed an income tax penalty. The only possible constitutional restriction is an archaic provision saying that if Congress imposes anything that amounts to a “head tax” or “poll tax” (that is, taxing people simply as people rather than taxing their income), then it must do so uniformly (that is, the same amount per person). This technical restriction is easily avoided by using income tax laws. Purists complain that taxes should be proportional to actual income and should not be used mainly to regulate economic behavior, but our tax code, for better or worse, is riddled with such regulatory provisions and so they are clearly constitutional.

 

Arguments about federal authority deal mainly with states’ rights and sovereign power, but the real basis for opposition is motivated more by sentiments about individual rights - the notion that government should not use its recognized authority to tell people how to spend their money. This notion of economic liberty had much greater traction in a prior era, but it has little basis in modern constitutional law. Eighty years ago, the Supreme Court used the concept of “substantive due process” to protect individual economic liberties, but the Court has thoroughly and repeatedly repudiated this body of law since the 1930s. Today, even Justice Scalia regards substantive due process as an “oxymoron.”

 

Under both liberal and conservative jurisprudence, the Constitution protects individual autonomy strongly only when “fundamental rights” are involved. There may be fundamental rights to decide about medical treatments, but having insurance does not require anyone to undergo treatment. It only requires them to have a means to pay for any treatment they might choose to receive. The liberty in question is purely economic and has none of the strong elements of personal or bodily integrity that invoke Constitutional protection. In short, there is no fundamental right to be uninsured, and so various arguments based on the Bill of Rights fall flat. The closest plausible argument is one based on a federal statute protecting religious liberty, but Congress is Constitutionally free to override one statute with another.

 

If Constitutional concerns still remain, the simplest fix (ironically) would be simply to enact social insurance (as we currently do for Medicare and social security retirement) but allow people to opt out if they purchase private insurance. Politically, of course, this is not in the cards, but the fact that social insurance faces none of the alleged Constitutional infirmities of mandating private insurance points to this basic realization: Congress is on solid Constitutional ground in expanding health insurance coverage in essentially any fashion that is politically and socially feasible.

 

 

And here:

 

http://www.law.georgetown.edu/oneillinstitute/national-health-law/legal-solutions-in-health-reform/Individual_Mandates.html

This paper analyzes whether Congress can legislate a health insurance mandate and the potential legal challenges that might arise, given such a mandate. The analysis of legal challenges to health insurance mandates applies to federal individual mandates, but can also apply to a federal mandate requiring employers to purchase health insurance for their employees. There are no Constitutional barriers for Congress to legislate a health insurance mandate as long as the mandate is properly designed and executed, as discussed below.

[npts2020]

Does anyone know if a future public option is still possible or does this bill preclude the government ever proposing one? That's the kind of thing I worry about in a bill this large and complicated.

 

So far I have only slogged through about half of the bill but it is my understanding that no future legislation is precluded by any of this bill. In fact, if I am not mistaken, a public option is one of the things that was to possibly be addressed at some future time.

[pioneer]

A free market health system is a dual edge sword. On the one hand, the free market has the capacity to create the most efficient use of resources. But the free market is not in the business of charity or altruism, therefore it will also try to create unneeded markets; desired markets.

 

For example, liability lawyers work within the free market. Their lawyering is not done entirely for altruism or charity. It is to make money. They have worked hard to create demands for services which, tend to make everything more expansive. Their cut of the pie adds costs to the entire health care industry.

 

This is not an isolated pollutant within the free market system. The public sector sees such smoke, bellowing from the factory of the free market, as the free market produces many useful things, efficiently. If the opportunity is there and/or someone figures out a new angle, someone will seize the opportunity. That is the nature of the free market. It is not a charity organization. It is there to moves resources for profit.

 

The private sector is not perfect either. It has its own smoke bellowing, as its factory produces some useful things. The motivation of the private sector is power and not money. Money is a tool for power. The more money controlled, but not owned, the more power. Socialize medicine tends to be more spartan than free market medicine. It will get rid of frivolous free market choice. However, it tends to go even below that, since the less we have to divide, the more we can influence people. That is power 1.0.

 

If I had one sandwich in my hand and a hundred hungry people I can keep their attention. I can make them jump up and down. I can get special attention if I want. If the free market opens up a sub shop so there are more sandwiches the attention is divided. Socialized medicine gets rid of one smoke but creates another.

 

Both sides can see the smoke from the other side, but neither can see their own smoke. Or if they see their own smoke, they can show it, since that smoke is their motivation. That is why the vote was divided down middle. I don't trust either side to do the right thing, which is to minimize the smoke coming from both camps. The first pollution abatement step should be the lawyers. But this pollution is supported by the power structure.

Edited March 23, 2010 by pioneer

[Genecks]

I think if there are changes in health care, then medical doctors are going to be paid less.

I wonder what changes in the realm of academia and research a passed health care reform will have.

I'm not sure.

 

A moral issue is that Americans going to see some shifts in who gets to choose who dies and whatnot.

There are problems with medicine for all, but then again, not everyone needs medicine all the time.

Also, as an American, I'm sick of the majority of medical doctors I have to put up with.

About each time I've come into a medical office sick, they want to test me for strept throat.

GGGRRRR.. I've had strept throat so many times growing up, I would know if I'm infected or not.

If I get the ability to visit another doctor and different clinic and have a second opinion, that would be awesome.

 

The time before last I was seriously ill, I accidentally got someone else seriously ill. When that person was diagnosed, I was able to learn what I had wrong with me. The doctor at the time brushed me off as if very little was wrong with me. No, I was sick for months. What a joke some of these medical clinics are.

 

Now that I have a better knowledge of biology, I could have diagnosed myself, sued these supposedly educated persons, and been pleased with the results. My illness was a simple textbook case that was overlooked and ignored. I was deeply insulted by this, and I feigned a deep hatred against medical doctors; as such, I often wonder how they are even employed and got as far as they did. Each time I come across medical doctors, they seem stupid to me. I do not claim to be more intelligent; but when I later become as intelligent as they are in some aspects, I cannot help but wonder what was wrong with their level of knowledge when trying to make a diagnosis. Were they idiots? Were they on drugs that day?

 

There are good sides to this health care reform, and there are bad sides.

In general, I think other countries have handled this situation quite well.

Perhaps it is a sign that leaders of the American country believe that it's going to crumble, become inefficient, or could be under attack.

 

I've often considered that without a health care system to protect Americans in general, a bioterrorist could come in and destroy and attack America. From that standpoint, Obama was justified in seeking better health care for the American people.

 

There are good and bad sides. In general, it benefits more people than less people. This is probably a good thing.

If things get that bad, a person could always leave America.

I suspect I should brush up on my knowledge of world societal issues.

Edited March 24, 2010 by Genecks

[iNow]

No, but on a more serious note, I think if there are changes in health care, then medical doctors are going to be paid less.

As such, we're going to see some shifts in who gets to choose who dies and whatnot.

When I read this, I wonder if (as a result of pay going down overall... which, we'll see whether that happens or not, but if we take it as given) now more doctors will go into the profession based on a genuine desire to help heal people, as opposed to avarice and greedy inclinations as the primary driver of choosing to become a doctor. Lower incomes means those that still choose this line of work may be more likely to prioritize care of others over the heft of their paycheck. Maybe that's not such a bad thing. Just putting that out there for consideration.

[Mr Skeptic]

you're talking about properties of how the "market" is. Not how it could/would be.

 

Of course. You can't go about pretending that the market is something that it isn't -- it isn't magic. It only works under certain circumstances. Health insurance is one of the circumstances it doesn't work efficiently. Ergo, there isn't and will never be a good free market solution.

 

Plugging your ears and cheering for the free market will not change the facts. If you disagree, you are more than welcome to show that healthcare does actually satisfy the requirements for the free market to work effectively.

 

Oh, and another one I forgot to mention was the problem of free riders. The person who does not buy health insurance and cannot afford to pay his medical bill but by law is required to be given treatment, is a free rider. The free market cannot deal with free riders. Mostly because the free market is not allowed to -- they cannot control a public resource. Because we refuse to let people die in the streets due to lack of treatment, we have made emergency care a public resource of sorts.

[Genecks]

Possibly... I've held this theory that people watch TV and then want to enact what they see. As such, there are many medical shows and law shows on TV. That has often made me consider that people are going into these professions, because they've been somewhat brainwashed into it. And in order to create a rational reality for themselves, they've decided to say they want to become medical doctors, caring medical doctors. There are perks to that instead of becoming a researcher. But being a medical doctor rather than a medical doctor who does research... well, just being a medical doctor is a dead-end job if you ask me. I have a slight humor on what defining something as a dead-end job.

 

But in general, I think that the medical doctors whom accept the lower wages will be doctors who care. Perhaps a study of what happened to the views of doctors in foreign countries during various reforms would help people understand what will happen in America if things change.

Edited March 24, 2010 by Genecks

[Rickdog]

Not really so, though. Probably their income will be lower, but what is more likely is that the insurance companies, will have to pay them through other means, since that`s what it is supposed so. What I get about the bill, is that the regular people will have to pay them more in order that they assume the costs of higher feas than normal. Specially in regards to catastrophic illness or disease, where actually as how things are now, can mean bankrupcy for a whole family with one of these patients among them.

 

Of course when you are healthy, you never think that it can happen to you, so it is difficult to understand this. But nobody is inmune, and what is thought as never affecting you, can finally do, and when this happens, maybe you`ll think diferent about the whole issue.

[Mr Skeptic]

First, nobody is required to buy a car, so the mandatory nature of of auto insurance is attached to the freedom to buy, or not buy, a car.

 

What if they attach healthcare to the freedom to buy food (as opposed to growing your own)?

[jryan]

This is, AFAICT, rather irrelevant to the point. Congress has the authority to regulate commerce, and this has been supported time and again by SCOTUS. If citizens refuse to purchase insurance, it raises rates on other citizens, and therefore impacts commerce directly and falls well within congressional power.

 

But that is circular logic as the other citizens also have the right to not purchase health insurance. You can't force one group to buy a commodity so that another group who wants the commodity can afford it.

 

 

In hopes of moving beyond my example of the auto mandate, I'll share the below interesting exploration of the question of mandate constitutionality:

 

http://www.thehealthcareblog.com/the_health_care_blog/2009/12/is-it-unconstitutional-to-mandate-health-insurance.html

Is it unconstitutional to mandate health insurance? It seems unprecedented to require citizens to purchase insurance simply because they live in the U.S. (rather than as a condition of driving a car or owning a business, for instance). Therefore, several credentialed, conservative lawyers think that compulsory health insurance is unconstitutional. Their reasoning is unconvincing and deeply flawed.

 

<...>

 

Constitutional attacks fall into two basic categories: (1) lack of federal power (Congress simply lacks any power to do this under the main body of the Constitution); and (2) violation of individual rights protected by the “Bill of Rights.” Considering (1), Congress has ample power and precedent through the Constitution’s “Commerce Clause” to regulate just about any aspect of the national economy. Health insurance is quintessentially an economic good. The only possible objection is that mandating its purchase is not the same as “regulating” its purchase, but a mandate is just a stronger form of regulation. When Congressional power exists, nothing in law says that stronger actions are less supported than weaker ones.

 

This is a poor argument. All the author has done so far is establish that mandates are really just regulations with the rationale being nothing more than "just because".

 

An insurance mandate would be enforced through income tax laws, so even if a simple mandate were not a valid “regulation,” it still could fall easily within Congress’s plenary power to tax or not tax income. For instance, anyone purchasing insurance could be given an income tax credit, and those not purchasing could be assessed an income tax penalty. The only possible constitutional restriction is an archaic provision saying that if Congress imposes anything that amounts to a “head tax” or “poll tax” (that is, taxing people simply as people rather than taxing their income), then it must do so uniformly (that is, the same amount per person). This technical restriction is easily avoided by using income tax laws. Purists complain that taxes should be proportional to actual income and should not be used mainly to regulate economic behavior, but our tax code, for better or worse, is riddled with such regulatory provisions and so they are clearly constitutional.

 

Again a weak argument. The Federal Government has the ability to set taxes and tax credits. In this case the tax credit would be used which is an incentive, which is not a mandate either. Also it again makes the false, or yet unproven, assertion that mandates are regulations.

 

Arguments about federal authority deal mainly with states’ rights and sovereign power, but the real basis for opposition is motivated more by sentiments about individual rights - the notion that government should not use its recognized authority to tell people how to spend their money. This notion of economic liberty had much greater traction in a prior era, but it has little basis in modern constitutional law. Eighty years ago, the Supreme Court used the concept of “substantive due process” to protect individual economic liberties, but the Court has thoroughly and repeatedly repudiated this body of law since the 1930s. Today, even Justice Scalia regards substantive due process as an “oxymoron.”

 

This is, as I stated earlier, most likely the argument that the Federal Government will use. As such they will need to establish that universal health care is a sufficiently compelling interest to deny the citizen right to property. But here the argument runs into a problem.

 

 

Under both liberal and conservative jurisprudence, the Constitution protects individual autonomy strongly only when “fundamental rights” are involved. There may be fundamental rights to decide about medical treatments, but having insurance does not require anyone to undergo treatment. It only requires them to have a means to pay for any treatment they might choose to receive. The liberty in question is purely economic and has none of the strong elements of personal or bodily integrity that invoke Constitutional protection. In short, there is no fundamental right to be uninsured, and so various arguments based on the Bill of Rights fall flat. The closest plausible argument is one based on a federal statute protecting religious liberty, but Congress is Constitutionally free to override one statute with another.

 

This is a bizarre argument as they claim there is no requirement to get medical treatment, yet they also claim that should you want that treatment it should be a right. If they argue the fundamental right of treatment decoupled from economic consideration (as they have) then the conclusion is that the Federal Government can not limit or regulate treatment.

 

Without health care being a fundamental right they have a hard time arguing that there is a compelling need for the mandate.

 

If Constitutional concerns still remain, the simplest fix (ironically) would be simply to enact social insurance (as we currently do for Medicare and social security retirement) but allow people to opt out if they purchase private insurance. Politically, of course, this is not in the cards, but the fact that social insurance faces none of the alleged Constitutional infirmities of mandating private insurance points to this basic realization: Congress is on solid Constitutional ground in expanding health insurance coverage in essentially any fashion that is politically and socially feasible.

 

As I said before, taxation and providing a service is not automatically the same as mandating the purchase of a good or service. If they successfully make that connection there will be a rather amazing precedent set that could easily see "Buy American!" turned from a simple slogan to a Federal mandate to boost the economy.

 

And here:

 

http://www.law.georgetown.edu/oneillinstitute/national-health-law/legal-solutions-in-health-reform/Individual_Mandates.html

This paper analyzes whether Congress can legislate a health insurance mandate and the potential legal challenges that might arise, given such a mandate. The analysis of legal challenges to health insurance mandates applies to federal individual mandates, but can also apply to a federal mandate requiring employers to purchase health insurance for their employees. There are no Constitutional barriers for Congress to legislate a health insurance mandate as long as the mandate is properly designed and executed, as discussed below.

 

Having read the executive brief they have made no arguing substantively different than above. As such, I don't agree with the determination for the same reasons already stated.

 

The only interesting difference is that they make claim that the Federal Government can issue such mandates and enforce them through tax-and-spend rights and by tying federal funds to states on state adherence to the federal mandates. This is interesting for a few reasons.

 

First it is interesting as in that form of implementation the Federal Government agrees in principle with the fact that they have no authority for such mandates, and choose instead to buy state complicity (states do have such rights).

 

Second, for such a piece of legislation to work it would have to be financially beneficial to the state to comply with the federal mandate. Also I am pretty sure that that mechanism needed to be in the bill when it was passed into law.

Edited March 24, 2010 by jryan

[iNow]

If they successfully make that connection there will be a rather amazing precedent set that could easily see "Buy American!" turned from a simple slogan to a Federal mandate to boost the economy.

Slippery slope comments are argumentative fallacies, and I will disregard it as such.

 

 

First it is interesting as in that form of implementation the Federal Government agrees in principle with the fact that they have no authority for such mandates, and choose instead to buy state complicity (states do have such rights).

 

Second, for such a piece of legislation to work it would have to be financially beneficial to the state to comply with the federal mandate.

That is not what the study concluded. You are 1) focusing solely on one bullet point while ignoring others, and 2) misrepresenting that one bullet point. All it said was that IF congress wanted to avoid 10th amendment related challenges they COULD make state funding contingent on their approach to healthcare.

 

 

Here it is for others to see:

Federalism:

The 10th Amendment and principle of state sovereignty in the Constitution prohibit the federal government from commanding the states to implement federal law or policies that would interfere with state sovereignty. This is referred to as the “anti-commandeering” principle. A federal employer mandate covering state and local government workers appears consistent with existing Constitutional decisions but still might be susceptible to challenge under the Tenth Amendment.

 

<...>

 

If Congress would like the states to implement an insurance mandate, it can avoid conflicts with the anti-commandeering principle by either preempting state insurance laws or by conditioning federal funds on state compliance.

 

 

Also I am pretty sure that that mechanism needed to be in the bill when it was passed into law.

You're confident it was not?

 

 

 

---

Merged post follows:

Consecutive posts merged

Since the above was limited to the summary, here is more from the full report:

 

 

http://www.law.georgetown.edu/oneillinstitute/national-health-law/legal-solutions-in-health-reform/Individual_Mandates.html

ince the 1930s, the Court has never set 10th Amendment limits on Congress’s exercise of its power to tax or power to spend. In modern times, the 10th Amendment to date has been used to limit only Congress’s regulatory powers under the Commerce Clause.

<...>

No commandeering element is needed in a federal mandate for private health insurance since this would not require state implementation. Instead, Congress could simply pre-empt state insurance laws, as it now does through ERISA. However, Congress might prefer state implementation for federalism reasons expressed in the McCarran-Ferguson Act, and to better reflect varying local conditions. If so, Congress would need to find some means to induce states to act.

 

There are two recognized approaches: conditional spending and conditional pre-emption. Using the first approach, the previous section explains that Congress could condition the receipt Using the first approach, the previous section explains that Congress could condition the receipt of relevant federal funds on states enacting complying legislation. Using the second approach, Congress could simply allow states with complying laws to opt out of pre-emption and direct federal regulation. The Court in New York v. United States36 stated that, “where Congress has the authority to regulate private activity under the Commerce Clause, we have recognized Congress' power to offer States the choice of regulating that activity according to Federal standards or having State law preempted by Federal regulation.”

 

For instance, Congress has used conditional pre-emption in HIPAA, which applies a federal “fall-back” or default law to states that do not enact laws providing for guaranteed issue and portability of group health insurance (among other requirements). Although the constitutionality of this part of HIPAA has not been challenged, it is widely regarded as a successful balance of federalism concerns.

 

The remaining federalism concern is whether Congress could apply an employer mandate to state and local government employers. The answer appears to be uncertain. The Court in Garcia v. San Antonio Metropolitan Transit Authority, overruled a prior decision to hold that state and local government employees are subject to federal minimum wage and overtime laws. However, the Court did not provide a helpful conceptual framework for a 10th Amendment analysis. Instead, it held in Delphic fashion that "we need go no further than to state that we perceive nothing in the overtime and minimum-wage requirements of the FLSA … that is destructive of state sovereignty …”

 

Although it is impossible to know how extensive this precedent is, mandating employee benefits appears indistinguishable from mandating wage levels, and therefore is supported by Garcia.

Edited March 24, 2010 by iNow
Consecutive posts merged.

[jryan]

Slippery slope comments are argumentative fallacies, and I will disregard it as such.

 

This is not a slippery slope argument. It a flat statement of the precedent being set. This is part of the process that the SCOTUS will use to determine if the law will stand.

 

That is not what the study concluded. You are 1) focusing solely on one bullet point while ignoring others, and 2) misrepresenting that one bullet point. All it said was that IF congress wanted to avoid 10th amendment related challenges they COULD make state funding contingent on their approach to healthcare.

 

 

But they DIDN'T make the state mandates contingent on acceptance of funding. With the connection to funding it is still a choice of the individual states. This law does not give the states, or the individuals, the choice.

 

Here it is for others to see:

Federalism:

The 10th Amendment and principle of state sovereignty in the Constitution prohibit the federal government from commanding the states to implement federal law or policies that would interfere with state sovereignty. This is referred to as the “anti-commandeering” principle. A federal employer mandate covering state and local government workers appears consistent with existing Constitutional decisions but still might be susceptible to challenge under the Tenth Amendment

 

Exactly. But the bill does not make it an option to the states contingent on funding.

 

<...>

 

If Congress would like the states to implement an insurance mandate, it can avoid conflicts with the anti-commandeering principle by either preempting state insurance laws or by conditioning federal funds on state compliance.

 

It wouldn't be a mandate then.

 

You're confident it was not?

 

Yes I am.

 

Since the above was limited to the summary, here is more from the full report:

 

 

http://www.law.georgetown.edu/oneillinstitute/national-health-law/legal-solutions-in-health-reform/Individual_Mandates.html

ince the 1930s, the Court has never set 10th Amendment limits on Congress’s exercise of its power to tax or power to spend. In modern times, the 10th Amendment to date has been used to limit only Congress’s regulatory powers under the Commerce Clause.

<...>

No commandeering element is needed in a federal mandate for private health insurance since this would not require state implementation. Instead, Congress could simply pre-empt state insurance laws, as it now does through ERISA. However, Congress might prefer state implementation for federalism reasons expressed in the McCarran-Ferguson Act, and to better reflect varying local conditions. If so, Congress would need to find some means to induce states to act.

 

There are two recognized approaches: conditional spending and conditional pre-emption. Using the first approach, the previous section explains that Congress could condition the receipt Using the first approach, the previous section explains that Congress could condition the receipt of relevant federal funds on states enacting complying legislation. Using the second approach, Congress could simply allow states with complying laws to opt out of pre-emption and direct federal regulation. The Court in New York v. United States36 stated that, “where Congress has the authority to regulate private activity under the Commerce Clause, we have recognized Congress' power to offer States the choice of regulating that activity according to Federal standards or having State law preempted by Federal regulation.”

 

For instance, Congress has used conditional pre-emption in HIPAA, which applies a federal “fall-back” or default law to states that do not enact laws providing for guaranteed issue and portability of group health insurance (among other requirements). Although the constitutionality of this part of HIPAA has not been challenged, it is widely regarded as a successful balance of federalism concerns.

 

The remaining federalism concern is whether Congress could apply an employer mandate to state and local government employers. The answer appears to be uncertain. The Court in Garcia v. San Antonio Metropolitan Transit Authority, overruled a prior decision to hold that state and local government employees are subject to federal minimum wage and overtime laws. However, the Court did not provide a helpful conceptual framework for a 10th Amendment analysis. Instead, it held in Delphic fashion that "we need go no further than to state that we perceive nothing in the overtime and minimum-wage requirements of the FLSA … that is destructive of state sovereignty …”

 

Although it is impossible to know how extensive this precedent is, mandating employee benefits appears indistinguishable from mandating wage levels, and therefore is supported by Garcia.

 

It IS distinguishable from Garcia as it doesn't simply madate employee benefit levels offered by the employer but also mandates that the employee must buy them. It would be indistinguishable if the federal government mandated income levels at the SAMTA and then ordered citizens to work there.

[iNow]

But they DIDN'T make the state mandates contingent on acceptance of funding. With the connection to funding it is still a choice of the individual states. This law does not give the states, or the individuals, the choice.

 

 

Exactly. But the bill does not make it an option to the states contingent on funding.

And your point is?

[toastywombel]

I think this guy says it best jryan,

 

"According to the Constitution's commerce clause, Congress has the power to "regulate commerce . . . among the several states." Traditionally, insurance contracts haven't been considered commerce, which is why they've been regulated by the states. But given that Congress has long been allowed to regulate other "economic" activities—activities that affect interstate commerce, even if they don't qualify as interstate commerce themselves—the Supreme Court isn't likely to object to congressional regulation of health insurance."

 

http://blog.newsweek.com/blogs/thegaggle/archive/2010/03/23/the-gop-s-last-best-hope-to-hobble-obamacare.aspx

[jryan]

I think this guy says it best jryan,

 

"According to the Constitution's commerce clause, Congress has the power to "regulate commerce . . . among the several states." Traditionally, insurance contracts haven't been considered commerce, which is why they've been regulated by the states. But given that Congress has long been allowed to regulate other "economic" activities—activities that affect interstate commerce, even if they don't qualify as interstate commerce themselves—the Supreme Court isn't likely to object to congressional regulation of health insurance."

 

http://blog.newsweek.com/blogs/thegaggle/archive/2010/03/23/the-gop-s-last-best-hope-to-hobble-obamacare.aspx

 

 

And again, this isn't a "regulation of health insurance" that is in question here. It is the constitutionality of the Federal Government mandating purchase of health insurance without the ability to opt out.

 

I have seen drinking age used in other articles to justify this. The Federal government sets a national drinking age, and then pins highway maintenance money to it's enforcement. States like Louisiana, however, for a very long time opted out of the state mandated drinking age and repaired their own roads. They had a choice.

 

There is nothing in the wording of the law that would allow the states, the employers or the individuals the ability to opt out of buying health insurance.

 

Ironically, nor should there be as the program doesn't even begin to work without mandatory participation. The whole reason that mandatory participation is included in this bill is it is necessary to offset the increased cost due to the clause eliminating pre-existing conditions.

 

As I pointed out earlier, with the elimination of pre-existing conditions health care becomes unworkable without universal participation, otherwise everyone would opt out of insurance until they are actually seriously ill. It would be silly not to since maintenance health costs are far lower per year than are premiums.

 

Also, ironically, the bill has a fine for not participating that is $750 or 2.5% of income (whichever is more). If the average family health plan is $13,375 annually then that makes paying the fine the better financial choice for anyone making less than $260,000 a year (assuming a fine of less than half the cost of average insurance premiums).

 

After all, without pre-existing conditions you can always buy health insurance when you get seriously ill and spend the half of the savings on other goods and services until you do get sick and sock the rest of the money away to pay for incidental medical bills throughout the year.

 

And no, paying a fine is not the same as opting out.

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Consecutive posts merged

Also, I would like to point out that it appears that I could pay fines and pay a lot less for my families insurance than I do now as I will be guaranteed coverage if one of us does get very ill. As such, arguing for the old plan is counter to my immediate financial interest.

 

I oppose this bill because in the long run it will bankrupt this country whether I pay into the new system or not.

[iNow]

Some relevant postings for those interested:

 

 

http://www.thedailybeast.com/blogs-and-stories/2010-03-23/how-to-kill-health-care-in-court/2/

Are opponents correct that Congress has never before required large numbers of people to purchase something? No. In fact, the Founding Fathers themselves included an “individual mandate” in a law way back in 1792. The Militia Acts were a series of bills that first organized state militias in America’s early years that required “free able-bodied” men to serve with their own gun. It didn’t matter to the Founding Fathers if someone preferred to spend his money elsewhere. He was required to have a gun, even if that gun had to be purchased from a private seller.

 

People often assume the Founders thought Congress’s powers were very narrow. But even they thought it was acceptable to impose an individual mandate to buy something on a large number of citizens when necessary for the public welfare. If Congress’s power over state militias could justify an individual mandate to buy something, so would Congress’s power over interstate commerce or over taxes.

 

Even some legal conservatives admit that the arguments against the bill are very weak. Given these strong precedents, why would anyone believe the Supreme Court would still invalidate the individual mandate?

 

 

http://volokh.com/2010/03/23/what-will-the-courts-do-with-the-individual-mandate/

In closing, let me also stress that the arguments against the individual mandate are anything but frivolous. For reasons I explained here, it would be difficult to strike down the mandate without limiting (if not overturning) the rationale of Gonzales v. Raich, but it would also be difficult to uphold the mandate without eviscerating what little is left of Lopez and Morrison.

 

 

http://abovethelaw.com/2010/03/baker-hostetler-partners-eager-to-get-their-name-all-over-health-care-reform-lawsuits/

On the other hand, do you really see SCOTUS overturning major health care reform on constitutional grounds? I don’t. I just don’t see how the Court takes this opportunity to stop the relentless expansion of the interstate commerce clause by overturning the most contentious public policy issue of our generation.

 

Which kind of leaves Baker Hostetler holding the bag for what may be interpreted as purely partisan lawyering…

 

<...>

 

Do people in good faith really think that health care reform is illegal? Or are we in a situation where the political losers are simply trying to subvert the ballot box?

 

These lawsuits are not surprising. They are a bit disappointing.

 

 

 

Via Adam at SCOTUSblog

[ecoli]

I think this guy says it best jryan,

 

"According to the Constitution's commerce clause, Congress has the power to "regulate commerce . . . among the several states." Traditionally, insurance contracts haven't been considered commerce, which is why they've been regulated by the states. But given that Congress has long been allowed to regulate other "economic" activities—activities that affect interstate commerce, even if they don't qualify as interstate commerce themselves—the Supreme Court isn't likely to object to congressional regulation of health insurance."

 

http://blog.newsweek.com/blogs/thegaggle/archive/2010/03/23/the-gop-s-last-best-hope-to-hobble-obamacare.aspx

 

The problem is that insurance is not interstate, due to purposeful legislation. They'd have to make an argument that health insurance affects interstate commerce anyway. Seems like a stretch to me, in terms of interpreting the commerce clause.

[Mr Skeptic]

Folks, I think it is pretty clear from iNow's sources that the government can, has, and will continue to wield the sort of power required to have the healthcare bill, and that the Supreme Court has and will continue to let them. That you personally disagree is fine, but it really will make little difference. Furthermore, I think it is rather off-topic since it applies to so many different things the government does (and has done and will continue to do). Also, regardless of anyone's opinion, the Republicans will take this to court.

 

So in summary: yes, this is another expansion of government power, and yes, you now have a little bit less economic liberty. And yes, based on history, they probably will get away with it.

 

How about we focus on something more specific to healthcare: what are the good points in this bill, and what are the bad points? Could they have done something better?

[iNow]

How about we focus on something more specific to healthcare: what are the good points in this bill, and what are the bad points? Could they have done something better?

Here is a title-by-title summary of the law (Note to Readers: This is an interesting point... The president has signed it... It's no longer a bill... It's now the law):

 

http://www.whitehouse.gov/healthreform/summary

[jryan]

Some relevant postings for those interested:

 

 

http://www.thedailybeast.com/blogs-and-stories/2010-03-23/how-to-kill-health-care-in-court/2/

Are opponents correct that Congress has never before required large numbers of people to purchase something? No. In fact, the Founding Fathers themselves included an “individual mandate” in a law way back in 1792. The Militia Acts were a series of bills that first organized state militias in America’s early years that required “free able-bodied” men to serve with their own gun. It didn’t matter to the Founding Fathers if someone preferred to spend his money elsewhere. He was required to have a gun, even if that gun had to be purchased from a private seller.

 

People often assume the Founders thought Congress’s powers were very narrow. But even they thought it was acceptable to impose an individual mandate to buy something on a large number of citizens when necessary for the public welfare. If Congress’s power over state militias could justify an individual mandate to buy something, so would Congress’s power over interstate commerce or over taxes.

 

Even some legal conservatives admit that the arguments against the bill are very weak. Given these strong precedents, why would anyone believe the Supreme Court would still invalidate the individual mandate?

 

The militia act was an emergency power that did not require the permanent retainer of the gear when it was not needed.

 

But I suppose that will be a good test of the Democrat zeal, however. The first bill passed when under a Republican House, Senate and Presidency should be a reinstatement of the Militia Act of 1792 requiring that all Americans purchase a firearm.

 

 

http://volokh.com/2010/03/23/what-will-the-courts-do-with-the-individual-mandate/

In closing, let me also stress that the arguments against the individual mandate are anything but frivolous. For reasons I explained here, it would be difficult to strike down the mandate without limiting (if not overturning) the rationale of Gonzales v. Raich, but it would also be difficult to uphold the mandate without eviscerating what little is left of Lopez and Morrison.

 

It will shape up to be a far reaching ruling to be sure. Also note that his argument is also not a matter of slippery slope, but rather of legal precedent that does, and the moment of decision, have far reaching application.

 

I don't totally agree with the Gonzalez-v-Raich comment, but it is certainly something to consider. The primary difference in that case is that the Federal Government was enforcing a prohibition on a product rather than demanding a perpetual purchase of a service.

 

Also, an interesting link in these first two articles is that a challenge to Gonzalez-v-Raich (via a finding of unconstitutionality in the health care bill) will open the door to both state rights to control banned substances as well as state rights in setting their own gun laws exclusively.

 

It really is a sticky wicket that the SCOTUS has gotten itself in over the years. This challenge could bring several contradictory rulings to a head. In this case US-v-Raich that expanded the power of Congress under the commerce clause and -v Lopez and -v Morrison where laws were struck down for exceeding authority ("federal mandated gun-free zones" and "Violence Against Women Act" respectively)

 

 

http://abovethelaw.com/2010/03/baker-hostetler-partners-eager-to-get-their-name-all-over-health-care-reform-lawsuits/

On the other hand, do you really see SCOTUS overturning major health care reform on constitutional grounds? I don’t. I just don’t see how the Court takes this opportunity to stop the relentless expansion of the interstate commerce clause by overturning the most contentious public policy issue of our generation.

 

Which kind of leaves Baker Hostetler holding the bag for what may be interpreted as purely partisan lawyering…

 

<...>

 

Do people in good faith really think that health care reform is illegal? Or are we in a situation where the political losers are simply trying to subvert the ballot box?

 

These lawsuits are not surprising. They are a bit disappointing.

 

Via Adam at SCOTUSblog

 

I see it as a distinct possibility. I think for the first argument to work the U.S. will have to establish the criteria for a state of emergency, which is easy to say but not so easy to do. Also I wouldn't be so sure that the 1792 mandate will be found compelling given the uniqueness of the circumstances surrounding the act itself.

 

It would be hard to argue lack of Federal funding for provision of insurance which enacting a bill that itself creates enormous debt itself.

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Merged post follows:

Consecutive posts merged

Folks, I think it is pretty clear from iNow's sources that the government can, has, and will continue to wield the sort of power required to have the healthcare bill, and that the Supreme Court has and will continue to let them. That you personally disagree is fine, but it really will make little difference. Furthermore, I think it is rather off-topic since it applies to so many different things the government does (and has done and will continue to do). Also, regardless of anyone's opinion, the Republicans will take this to court.

 

I don't think it is such a slam dunk as the court has been wrestling with the commerce clause for a while now while the current court, at best, waffles with limitations under the commerce clause. It appears, at least in Lopez, Morrison and Raich that the drift in the court is toward affirming federal prohibitions under the commerce clause while limiting proactive measures that congress grants to itself.

 

So in summary: yes, this is another expansion of government power, and yes, you now have a little bit less economic liberty. And yes, based on history, they probably will get away with it.

 

Well, it doesn't have to be. It will certainly be interesting to hear the arguments on this one and the deliberations of the court.

 

How about we focus on something more specific to healthcare: what are the good points in this bill, and what are the bad points? Could they have done something better?

 

Good Points: I would have to say the attempt to reign in Medicare fraud and abuse... though I think that is a pipe dream.

 

Bad Points: I don't think they have thought through this legislation very carefully. It is easy to find loopholes in the program that do nothing but punish health insurance companies while funneling money into the Federal coffers.

 

For example, by all rights the fines that people will pay for not having insurance should, by all rights be funneled back into the insurance companies who are the only losers under the new program. I've found nothing in the bill that shows this will happen.

 

It seems designed to ruin the health insurance industry while also making it harder for physicians to stay in business.