Osler's Razor

Personally, I'm struggling to see how mandating health/life insurance purchase is constitutional. If there were a public option to buy from the government, it could be construed as a tax (since you'd be required to pay the government), but as I understand it this bill requires you to purchase your own insurance from a private entity, something Congress has never (to my knowledge) been able to mandate in the past. When they have mandated it (like auto insurance), it's always been predicated on something like driving or practicing law; never have they based it on simply existing and being a US taxpayer. If there's a way it can be upheld without some creative interpretation, I'll be interested to hear it.
 

What is going on in the photo? Are your receiving some form of health care?
 

Justin, read this.

The individual mandate sets up a minimum amount of protection required. The most needy will be added to Medicare, and you free-market types ought to like the idea of exchanges. And let's not forget where the idea of the individual mandate came from: the obstructionists now attempting to stall reconciliation.

I think the bill is so-so. It contains lots of good things (adding people to Medicare, no more denials of coverage for pre-existing conditions), some neutral things (the individual mandate and exchange) and some really bad things (no federal funds for family planning services, although that's not necessarily a new change).

But it's an important first step. I am in agreement with the right wing talking heads on this: this is the first step toward a democratic socialist state. But it's a good step to take.

What's really needed in the long run, however, is some way of bringing the cost of medical care down, because until that happens, the system will remain irrevocably broken. And as it stands now, there's no incentive, market-based or otherwise, for that to happen.
 

Isn't there something in there about death panels, where they do the shooting of the old people?
 

I do not think this law is necessarily a bad thing for America. My concern is that it opens the door for a complete government run healthcare system.

Texas has an exchange system as an alternative way for group health insurance to be purchased. http://www.tdi.state.tx.us/health/lhcoopforming.html
Texas calls it a "co-op." The theory is that small businesses can join together to form a larger group in hopes that their health insurance premiums would go down. The state trains insurance agents on how to use their system to retrieve quotes for these co-ops.
I have not been in the insurance industry for 2 years (am now a law student), but this program was a complete failure as of 2 years ago. Premiums were not less expensive- in fact, they were much more expensive than what an agent could find on their own.

But here is my question: what section of the constitution is it that people are hanging their hat on to say that this bill is unconstitutional?
 

Anon 10:02 -- the Republican AGs that have sued (really, I can't believe top state lawyers are doing this) complain that the mandate that individuals purchase something from a private company (albeit subsidized by federal funds) is (1) unprecedented and therefore (2) unconstitutional.

However, I'd challenge them point out how exactly this doesn't fall under Section 8 powers, or how it implicates a Section 9 issue. But that's because Prof. Guinn actually taught me constitutional law.

Both the mandate and the exchange WERE popular conservative/Republican ideas, until they became part of the law, in which case now they're horrible socialist takeovers.

I have mixed hopes for the exchange: in theory, collective bargaining works and if the risk is spread over more people, the individual cost ought to be lower. In practice, it may be too difficult for most people to navigate. Hopefully this law will be followed by others aimed at more market-side reforms regulating price and complexity of coverage.
 

The Baylor Bears are in the Sweet Sixteen tomorrow. I can't focus enough to meaningfully contribute to this conversation.

So, what I have learned is this, if Baylor keeps winning at various sporting competitions, then it makes it much easier to capitulate to the desires of my government overlords.

Socialism might be scary, but it isn't half as scary as Josh "LomeDog" Lomers dunking in your face!
 

And that, my friends, is Hell freezing over.

1) Baylor in Sweet 16.
2) RRL not commenting on Health Care.
 

I think it is a great first step.
 

I'm still not seeing how the mandate is consitutional. Just because some whackjob Republican came up with it, doesn't make it right. And neither does the fact that states can opt out and create their own plan.

And I hate the comparison to auto insurance. You get insurance because you want the privilege to drive a car. It's required in that instance because I can hurt others and their property by exercising that privilege.

How the federal government can fine me for not wanting to protect myself if I'm rich enough to do so is ridiculous. I'm not asking for any privilege and i'd rather take care of it myself. I'm not risking others in the process. who are they to say I owe the government anything?

Insurance has always been a business predicated on the paranoia of people that something bad will happen BEFORE IT HAPPENS. So, yes, I see economically how it's better to have more participants to lower cost. But I don't understand how we can force a business to throw out the business model to suit our wants. By forcing ins. cos to accept people who've already burned their house down would be ridiculous in the context of home fire insurance. How is that different from this situation? I'm supposed to change my business to start accepting people I know will cost me money since they have pre-existing conditions!?
I'm not saying the moral issues aren't there, because they are. I'm just afraid that we are forgetting that the implementaion of these moral issues can run pretty afoul of what we should expect in this country...LEGALLY.
 

I hear a lot of talk about this being a "step in the right direction" or a "good first step." (not just here, but all over the place, particularly from Democrats who really WANT to get behind this.)
There have also been a lot of people telling me, "you don't know if this is going to work or not, so be patient, wait and see..."
That irks me. How many trillion dollar pieces of legislation do we throw at the wall, just to see if one sticks? How many can we AFFORD? Right now, I believe that answer to be none, including this one.
I have a number of problems with the bill itself, not limited to the thought of Big Brother taking a dollar out of my pocket and giving it to somebody else.
I am all for people of means giving back and using their money for the greater good. However, I'm also all for those people doing it by their own volition, rather than being compelled.
Clearly, we need reform. Rein in the insurance industry run amok.
But this legislation is too risky, and was done in haste, passed in a manner that I can't stomach-- reconciliation, a ridiculous loophole. The vote in the Senate today did not get the 60 votes that would ordinarily be required to pass legislation, and for reconciliation to be used on such a controversial, COSTLY piece of legislation strikes me as a swift kick to the nards.
Some of this, too, gets back to an earlier question from this blog-- What are the responsibilities of elected officials, to act/vote in accordance with their own personal moral compasses, or to act/vote according to the will of their constituents?
Based on reaction, it would seem that this bill became about the Dems beating the GOP, and not about what the people really want or need.
We can bitch and moan all day about certain politicians, but the problem is, we're the ones who put them in office.
Hard to blame the prince(s) when it's the confederacy of fools who give them their power.
I think-- I know, I know, a very original thought here-- that how this is received by the masses will, or at least SHOULD, be very clearly reflected in November.
 

...And I strongly agree with Dallas_ADA.
If I want to sit in a chair all day, putting myself at very little risk, and can afford to pay my bills on the rare chance a meteor strikes my house and maims me, I should not be forced to buy something I don't want/need.
That's all, I'm done now.
 

Dallas_ADA: Constitutional scholars seem to be coming down on both sides of the issue, but look at Prof. Hall's arguments in favor of it: (1) the Art. I, §8 powers support this kind of regulation, and (2) there is no recognized right to be uninsured.

Further, it's not like you're paying the government for health care insurance. Rather, the government is setting up a market-based solution for people that cannot afford health insurance (but are nevertheless too well-off to be put on Medicare/Medicaid) so that it becomes more affordable, with some (at this time) nebulous enforcement scheme set up to ensure that people do not neglect to insure themselves.

The regulation fundamentally changes the way the insurance "business" works by attempting to change the focus from profit margins and shareholders to coverage and patients. It does represent the government changing the way a business is run: but (and I can't stress this enough) Congress does this all the time (consider the federal denial of highway funds for states that do not raise the legal drinking age to 18). The question isn't whether this is an economic regulation with serious restrictions on business (it is), but whether it is a valid exercise Section 8 powers. You may disagree with the actions of Congress from time to time (I certainly do! I haven't forgotten the USA PATRIOT Act!) but that is neither here nor there when it comes to constitutionality (and, for the record, I argued to all my idiot liberal relations and friends that as bad of a law as it is, the PATRIOT Act is still constitutional).

Also, Woody, the Senate needs only 51 votes plus the signature of the President to pass a bill. Also, recent Gallup polls show that a plurality (49%) of people support the health care reform bill, and other trends from Nate at 538 suggest that when neutral questions are asked about the bill (as opposed to slanted poll questions), more people would favor it.

I think the media narrative of health care reform being hasty, partisan and unpopular is false. It is an effective political tool, one which, combined with positive reporting on Tea Party protests (remember, the same groups that hurled ethnic, racial and homophobic slurs at Congresspeople) make it seem like the Democrats have betrayed the will of the people here in passing legislation that was not extensively researched. However, CBO reports, policy statements from people like Prof. Hall (linked above), and other documents show that this was a long-running effort by left-leaning Democrats, one that many of them used as a campaign platform. It was certainly a part of both President Obama and Hillary Clinton's campaigns, and President Obama won by a decisive majority of the popular vote. Health care reform remains popular even after a very well-run anti-reform campaign by the right.

I think it obvious that a significant portion of the people in this country did want the reform to pass. Sure, some people didn't, but the point of a democracy is that, subject to certain limitations, the will of the majority prevails.

I too am looking foward to November. I think a few seats are going to shift Republican (trends don't lie, and most midterm elections go against the White House), but I think the Democrats will retain a 3-5 seat majority in the Senate. The House is anyone's ballgame.
 

Lane, agreed that people are looking for reform.
I just don't think this fits the bill, no pun intended.
As for the simple majority needed, it would require 60 votes to break a filibuster, which is taken out of play in reconciliation. That's what I was referring to, and flat-out don't like.
If only so I could check in on c-span at 2:30 in the morning to hear some Republican senator talking about how his dog just had a healthy litter of puppies, and isn't the lucky recipient of any federally mandated insurance coverage.
 

Alright, I'm a liar.

Lane says:

"there is no recognized right to be uninsured."

Two thoughts.

1. Hey, there was no recognized right to privacy until the US Supreme Court created one, so why should we let that stop us!!!

2. On a more serious note, I agree. The US Constitution does not cover the question of whether a person has the right to be uninsured in an explicit manner. Liberals often use this fact as a reason why we have to have a living, breathing constitution. Because there are certain freedoms that may not be explicitly spelled out that are still important.

However, I will take a different approach. Is the fact that something isn't constitutionally protected a good reason for the government to get involved? Aren't there some encroachments on freedom that we should reject even though they are constitutional? Does the fact that something is constitutional, such as the Patriot Act, give it some kind of special power that prohibits us from attacking it simply because it is wrong?

It is wrong for the government to force people to buy health insurance. It is wrong for government to force insurance companies to insure people they don't want to insure. It is wrong, not because it is unconstitutional, but because we are a country based on a fundamental sense of individualism, freedom and sovereignty. And this bill is just another example of how we have allowed our government to infringe on that fundamental individualism, freedom, and sovereignty. Even if it works, it will still be wrong.

And I agree with Lane, these people ran on this bill, and a majority of people voted for them, and now they've done what they said they would do. And if you don't like it, and you voted for them, then you're to blame. And if you don't like it, vote for the other guys next time.

The health care bill isn't what bothers me (though I think history, empiricism, and studies show that it won't work and will be bad for our economy, deficit, and health care system). What bothers me is what this bill, along with a number of other bills, says about where our country is headed.

Progressivism is a movement that is committed to limiting personal freedoms in favor of allowing a government comprised of "experts" to make our decisions for us, and this bill is part of that movement. And that troubles me infinitely more than whether or not health care exchanges work.
 

Oh, and Lane, lets at least get the facts straight if we are going to quote someone. Today, Nate Silver wrote a post on 538 where he specifically said the Gallup poll you cite is unreliable, and said the most reliable poll was the one done by Quinnipiac, which showed the health care bill was unpopular amongst 49%, while popular amongst only 40%.

I don't know what those numbers prove exactly, but if you're going to argue numbers, and cite a source, that is what the numbers say.
 

And a link to that Nate Silver article:

http://www.fivethirtyeight.com/2010/03/are-democrats-better-off-for-having.html
 

RRL, on the "no right to be uninsured," that was not my statement but a quote from Prof. Hall on the Constitutionality. My analysis began and ended with Sec. 8.

Second, thanks for the 538 link. I hadn't read any of today's postings. That does change things somewhat, though I don't agree that it indicates that a bill was passed that the American people do not want, for the other reasons I mentioned. It'll be interesting to see whose version of the health care narrative makes it into the history books, starting with what happens this November (I'm still predicting a 53-55 seat Senate for the Dems).

As for the relative merit of the individual mandate, I'm not exactly thrilled with the idea either. I like that we're trying to make sure everyone has insurance, and I think it's well within the federal government's power to do what it is doing, but I'd prefer that instead of an individual mandate we have a national health insurance plan if people did not want/could not afford private insurance. Given the government subsidies, I think this will end up sort of like that... except I don't like giving government funds to private entities not subject to democratic control.

In a very strange move, I'm going to agree with you that social democracy via the liberal system of subsidies and things like the individual mandate is broken, problematic and ultimately unworkable in the long run. That kind of state exists as a compromise between laissez-faire ideals (which I will grant are the basis of the United States economy and always have been) and progressive desire to use law to achieve social justice aims, embodied in the New Deal and Great Society.

Where we disagree is in your view of government as a benevolent oligarchy of experts usurping personal autonomy. The fault of liberal statism is that it invariably seeks to persuade people to make the right choice through the enactment of laws backed up with expert policy analysis. On paper, this seems like a good idea, much like Plato's philosopher-kings. In practice, however, it falls short of respecting individual autonomy and the ability of individuals to act collectively. It's just another (albeit more benevolent) form of exploitation by the bourgeoisie.

I want a government composed of the people, who send other people to represent their interests in that government, and where the only legitimate aim of that government is to in turn serve the people and the civil society on which it is based through the provision of basic needs for all people, so that we might eliminate injustice and class struggle within society. To that end, the health care reform bill will fail... if it were the end result, instead of a stepping stone along the way.
 

Lane, you posted an article and some references to several supporting arguments for this bill's Constitutionality, but the bottom line of it is that Congress has never had the power to force you to enter into a private contract against your will, and I'm not sure how anything in section 8 extends their powers to make that happen. There might be a way to opt out on a state level, but if the bill requires that you purchase some form of insurance or face a penalty, then I just don't see it holding up to Constitutional muster on policy grounds if not precedent.

One of the fundamental problems with the approach to health care in the US is that we as a society rely on insurance to pay for things that insurance probably shouldn't pay for. Regular checkups, vaccinations, minor illnesses, etc. should all come out of pocket, with insurance being reserved for the serious costs that most people don't save for. Think about it- you don't use your homeowner's insurance (usually) to pay for lightbulbs, wallpaper, new tile, or any of the other ordinary expenses that arise from the ownership of a house. You just assume that you will pay for those things when they arise and insurance will cover the major stuff. Why should health care be any different? If the logic is that the State is forcing us to look out for our own good, a more efficient means would seem to be to require at least 2 doctor's visits a year, with a fine for failing to do so. Of course, the State would never impose such a restriction on one's personal liberty-- instead, we just wait for the situation to arise and force the public to pay for the possibility. It doesn't make a lot of sense why one is ok and the other isn't, but it seems to me that's because neither of them are ok.
 

538 also notes if you average all the polls done, it indicates 43 for and 46 opposed - in other words were about even with probably a slight plurality against. but hardly can it be said an overwhelming amount of americans oppose this thing relative to those that support it
 

So I assume those using Article 8 are refering to the "welfare of the United States" as supporting this kind of legislation. Not suprisingly, I don't interpret that to mean what you do. I don't think the framers were contemplating charity when they were adding that language.
I believe, and I assume others would as well that it simply refered to the financial well being of the coalition of states known as the USA. Absent a more specific right, I'm gonna defer to the 10th and say that the feds should but out. I would say the same for many programs of the Sec 8 variety.
while we can debate whether this helps or hurt the financial well-being, I assume that most in favor can understand the reason behind the more conservative opposition.

What conservatives aren't doing a good job of explaining is that idea that spending more and more money on a problem never really fixes it, and with governments usually makes the problem worse. Hence we aren't the nice guys, we end up sounding like we're out to not "help people." For me, it really is just about the idea that the government sucks at spending money and always makes it worse by spending more.

Lane, as for your analogy to highway funds, I don't see how that's analagous to changing the business model in this situation. The guys building the roads continue to build the roads in the way they always have whether they get the money from the state or a private toll road operator. the business model is not changed by withholding the money from a state that doesn't want to play nice with others.
This plan actually fundamentally changes the business plan of health insurance. It's not longer insurance because we aren't planning for a possible risk and paying others to take the chance of having to cover the risk. Now we are telling those in the business to assume, not a risk, but an existing problem. You agree that this is a change forced upon these companies by the government and is to change the focus of business from profit margins to patients. But if you agree to that, you have to agree that the government is really killing the "business" because if the focus is on something other than profit margins, then "it ain't bidness." At that point it's socialism and communism. (in the nicest sense of the words)
While I understand that is something you would like to see, you also have to agree that those ideals have never been a significant part of the laissez-faire ideals you state our economy was founded upon and has remained.
My problem with that is that my father moved here from communist Poland to escape exactly the kind of economic conditions you are trying to create here, we came a couple years later. Hence my strong conservative beliefs on the subjects, especially economic ones.
The fundamental difference is that you believe somehow America will succeed in that attempt where pretty much everyone else has failed. Maybe I'm just pessimistic, but I believe America won't succeed if the government gets bigger and more invloved.
 

Time to get out the Dead Horse Beating Stick®.

Actually, the general welfare clause isn't a bad idea, but I was thinking more along the lines of commerce clause + necessary and proper, or tax and spend powers.

And, I'll leave it at this: not all forms of socialist/communist government reflect Soviet-style communism/Bolshevism. Much like any other form of government, leftist governments come in various types, and while some have proven to be disasters (Maoism, Soviet, autocratic socialism, etc.) others have proven to be very successful (democratic socialism in Western Europe, for example). Every industrialized Western nation (and many of the un-industrialized ones) has some sort of universal healthcare. Many of the other wealthy, quasi-free-market nations (Japan, Canada, France, the United Kingdom, Germany, etc.) have universal health care systems.

Are these systems perfect? No. Are these governments running on perfectly balanced budgets with no economic problems whatsoever? Of course not. But neither are we, and it's a shame that until last week, we were the only nation that did nothing to ensure that almost everyone within its borders had access to affordable health care. It's still a shame that we lag behind the rest of the world in providing universal care, but hey, I'm willing to take baby steps.
 

Lane, very nicely explained ... much better than several syndicated columnists who are PAID to explain such things. In Texas, some of the opposition is knee-jerk hatred of Obama and Democrats. When I've tried to ask those people about it, they simply have no clue. They're reciting bits of unconnected pieces they're read on the Internet, or heard from experts like Ann Coulter.
Bob