The Constitutionality Non-Argument.
Republicans and their flagrant abuse of the Constitution for whatever political ends suits them show no signs of stopping soon. Whether it be ignoring the 9th and 14th Amendments (abortion, gay equality), calling perjury over sex “high crimes and misdemeanors,” or tossing out the whole thing over scary brown people, nothing will get in the way of these “textualists.” The fact that they like to refer to themselves, ala Antonin Scalia, as textualists should have been the first clue that they had no regard whatsoever for the text of the Constitution. They just want to imbue their interpretations with a stamp of finality.
So now it’s health care reform that they want to pretend is unconstitutional. Now, this hasn’t exactly floated very high in the mainstream press discussion because it’s actually pretty crackpot stuff. In 60+ years there have been no serious constitutional arguments against Social Security, Medicare, Medicaid, etc., and there never will be (by some wild flight of imagination, if they succeeded in the Roberts Court, be prepared for the speediest Constitutional Amendment in history). Yet if the wingers believed a word they said, we’d see such a challenge. So it’s, as usual, a pile of noise that has one purpose: elect more Republicans.
If you want to skip straight to detailed explanations, click here and here for Michael Dorf’s two part defense. He tackles the individual mandate and the power of Congress to enact such forms of public assistance without explicit permission from the Constitution. Key quote:
Without the individual mandate, however, many young, healthy people would decline insurance until they got sick, creating a severe adverse selection problem. Thus, the individual mandate is closely connected with the regulation of health insurance, just as the Court said in Raich that the regulation of marijuana that is used for medical purposes is closely related to the regulation of the broader market for marijuana.
Health care is an enormous interstate business. It therefore counts as interstate commerce, regulable by Congress. Just as, in Raich, Congress acted constitutionally by declining to exempt individual acts of noncommercial intrastate marijuana possession from the Controlled Substances Act, so too Congress would act constitutionally by including an individual mandate within the ambit of its regulation of health care.
It’s impossible to argue that declining to buy health insurance while one is healthy undermines the entire enterprise. It cheats our mortality, pretending there is a time in our lives where we are somehow above illness and ill fortune. Unless you are willing to forego insurance for the entirety of your life, consenting to pay for all your future health care needs out of pocket, you are cheating the system and driving up the costs for others who have made no mistake except to be responsible. At any age, you could fall to a stroke (my cousin at age 16) and spend the rest of your life incurring massive government support. The younger you are, the greater the cost you could inflict on society.
Furthermore, the mandate’s only punishment prescribed so far is an income tax burden, which is well within the government’s power to enact.
And right now we have a terrible system for getting people to scramble for insurance: the threat of being denied if they fall sick before coverage, an immoral method that has the extra bonus of being completely ineffective. I want insurance, but I’ve been uncovered and unable to afford it for years. I will be covered next month (insert sigh of relief here) but that is, of course, dependent on my wife’s job.
Look, it’s not hard to understand there isn’t a scrap of seriousness in today’s GOP. Who among them plans to not buy health insurance, or accept government subsidies to be covered? None of them. Who have you heard argue the moral or economic case for bowing out of insurance because you feel fine today? Nobody. And who exactly could sue unless they didn’t first refuse health coverage? Don’t expect a teaming of libertarians and holistic healers anytime soon.
Further elaboration here.
In short, there is no fundamental right to be uninsured, and so various arguments based on the Bill of Rights fall flat.
I’ve dealt with enough pie-eyed libertarians before to know that they hate the Commerce Clause, but nothing they say is going to make it go away. If you refuse to insure yourself, you not only endanger your own health, but the health of others. Unless your birth name was Ka-El or you have six adamantium blades embedded in your forearms, it is deceitful to decline health insurance only to get it later, and carping about constitutionality is really little more than naive and likely partisan blather from people who would hate to see President Obama claim credit for the most significant advance in U.S. health care policy since Medicare.
-jb
November 16th, 2009 at 5:12 pm
Gallup poll – More Americans (50%) say providing healthcare for all is not the government’s responsibility than say it is (47%).
http://www.gallup.com/video/124256/government-responsibility-healthcare.aspx
Show us the authorization in the Constitution that allows the federal government to force people buy health insurance. That kind of power must be enumerated (like the authorization to print money, maintaining an army, the collection of taxes).
November 16th, 2009 at 6:39 pm
I love it when you comment on posts without reading them.
November 16th, 2009 at 7:43 pm
jeromy,
You’re so easily duped by liberal b.s.
You’re good at making excuses and tap-dancing around subject matter, but please, do show us where the federal government is authorized by the Constitution to force people to buy health insurance.
I just love it when you pretend to understand what you’re posting.
November 16th, 2009 at 8:03 pm
As much as it pains me to side with Group, he’s right about one thing, the Constitution must authorize the Federal Government to do this in an enumerated power. Otherwise the Federal Government is not able to do so under our system.
Well, I mean, they can but they shouldn’t.
Also:
“In short, there is no fundamental right to be uninsured, and so various arguments based on the Bill of Rights fall flat.”
That’s not true. According to the Constitution if something such as this reasoning isn’t listed in the Constitution then it goes directly to the people. So, yes, people do have the fundamental right to be uninsured.
November 16th, 2009 at 9:38 pm
Group: The federal government is allowed to regulate interstate commerce and impose taxes, which is what the penalty for not getting health insurance is.
This is, of course, in my post and in the cited articles several times.
Which is why I said you didn’t read anything before writing that response.
Of course, you try to deflect this with “I know you are but what am I?”-style retorts, but that’s how you roll. Intellectual honesty isn’t in your vocabulary.
November 16th, 2009 at 9:46 pm
Anon: Again, reading the article and responding directly to it is important. Your response, unfortunately, didn’t differ much from Group’s in that regard.
“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.”
The right to rip off health care providers by refusing to buy insurance when you’re healthy and then buying it when you start to feel sick doesn’t exist.
Again, there is only one solution necessary: a lifetime opt-out contract that says you will never purchase health care for the remainder of your life. Then you aren’t scamming the system and depleting funds necessary to care for those who were paying in all along.
Of course, even though I mentioned it repeated times, it goes ignored, because almost nobody would ever consent to sign such an opt-out. It would force somebody like Group2012 to actually put his health on the line to back up his bullshit.
It’s also important to remember that the existence of unenumerated rights doesn’t mean everything you want to be a right is a right. The government is merely expecting you to pay for the health care you want, will subsidize you if you can’t afford it, and will tax you if you refuse to be responsible. Presuming you expect health insurance at some point in your life, understanding your own mortality, what gives you the right to pretend you’re immortal and skimp on insurance? Especially when financial assistance will be available?
November 17th, 2009 at 12:17 am
That’s the risk that the Healthcare providers took when they started their collective companies. There will always be people who neglect to buy insurance until they’re sick. A law or more regulation will not fix this.
What would help is if people had higher deductible policies. Then the companies wouldn’t lose as much when people do decide to try and game the companies when they get sick.
This whole situation is one of the main reasons that costs are sky rocketing, however, an overuse of insurance is also heavily contributing this problem as well. High deductible policies address that issue by forcing people to take more responsibility with their money.
From what I’ve heard, however, those high deductible policies will be taxed in the current legislation. I’m not for sure on this, but this seems like a terrible move on the governments part.
No claiming something is a right when it is clearly not isn’t right. However, who is the government to say that you MUST be responsible with your life for the good of the community? It sounds like the government under this plan would be imposing a certain morality on the citizens. What gives the Federal Government the right to say how you, as a private citizen, should spend your money?
Are we really to believe that the system is being plagued by people who think themselves immortal? It seems more likely that the rise in costs lie elsewhere to me.
My apologies if this has gone any more off-topic.
November 17th, 2009 at 12:49 am
Again, I have laid the out for you, and it keeps getting ignored. Would you forfeit insurance for life and pay for your health out of pocket?
No? Okay then.
This isn’t necessarily about morality (though it is, as many of our laws are, but nothing one can argue seriously with), but commerce. I’m sorry, but insurance is the only way to afford proper medical care for most of the population: you, me, and all the other normal folks out there, including plenty in the upper class as well. And Congress has the power to regulate commerce.
Why on earth not? We’ve already seen it work in Massachusetts and other places where it’s been tried.
I’ve been reading a fair bit about costs, and fee-for-service is one of the biggest culprits. Doctors don’t get paid for making patients healthier, they get paid for ordering more tests and procedures. Some insight here:
http://www.medicalnewstoday.com/articles/128031.php
November 17th, 2009 at 12:59 am
“Are we really to believe that the system is being plagued by people who think themselves immortal?”
This is completely misplaced. Health care reform is about vanquishing the denial of care to people for having pre-existing conditions. If people can’t be turned down, then they have less incentive to buy health insurance until they really need it, and even with subsidies many might still try to skimp on the costs.
Insurance companies actually favor the mandate because if they have to take almost anybody, they need people to contribute whether or not they’re currently feeling ill. If everybody is in the pool, then we can handle the costs of the sick.
The problem is this fake outrage from partisan hacks like Group and a tiny group of over-principled libertarians who are acting like they’re being raped by being compelled to get health insurance.
Of course, we could save a lot of trouble if people were automatically enrolled in Medicare and everybody paid a little bit extra taxes to do away with the completely unnecessary private insurers, but in today’s climate of insipid stupidity that’s attacked as being some kind of commiefascistwhateverGLENNBECKSAIDSO but I digress…
I think it betrays just how little people really would be imposed upon here: everybody wants coverage. As I suggested previously, none of these people raising the hoopla actually want to refuse to buy insurance. It’s mostly just GOP noise, from people who will stoop to saying anything to be against Obama.
November 17th, 2009 at 9:25 pm
Actually, the Commerce Clause was intended to only be used to regulate interstate commerce. As the system stands right now, uou can not buy insurance over state lines so this argument falls flat.
Now in practice that’s no the case because the people in Washington are just going to do what they like regardless of the constitution. If people were able to buy across state lines then I wouldn’t have a problem with congress regulating that because it’s in their right to do so.
“Why on earth not? We’ve already seen it work in Massachusetts and other places where it’s been tried.”
I wonder how many people still do not have insurance in Massachusetts. I’m willing to bet it’s still a significant number.
As for fee-for-service this makes sense that people are over treated for nothing. The government has already incentivized procedures that would pay more for doctor’s services. The proposed plan seeks to do this even more. I don’t see how that is reform.
“Of course, we could save a lot of trouble if people were automatically enrolled in Medicare and everybody paid a little bit extra taxes to do away with the completely unnecessary private insurers, but in today’s climate of insipid stupidity that’s attacked as being some kind of commiefascistwhateverGLENNBECKSAIDSO but I digress…”
They’re saying that because what you want is a socialistic system. I’m not saying the huge outrage is right, but that is a socialistic system. You can try and say that it isn’t, but that’s what socialism is all about.
Call me what you want, but I don’t think that this will work out for the better.
November 17th, 2009 at 9:59 pm
I really wish you would have read my post and the articles I linked to before responding.
“The proposed plan seeks to do this even more. I don’t see how that is reform.”
Call it chocolate soup if you want, taking a small program that works at cutting costs and seeking to institute it nationally would make a massive difference in our ability to pay for health care.
And I don’t try to pretend this isn’t socialistic. Of course it is. I also don’t try to pretend we haven’t been a socialistic country for nearly eighty years. What I’m saying it isn’t is in any way comparable to communism as we understand it in the former USSR, Cuba, or any other countries that have used the interests of the people to institute fascist governments. We combine socialism with capitalism and democracy, just like most Western countries.
November 17th, 2009 at 10:14 pm
Btw, “As of September 2009, Massachusetts has the lowest number of non-insured residents at 4.1%”
November 17th, 2009 at 10:16 pm
http://www.kff.org/uninsured/upload/7777-02.pdf
Even lower estimate, 2.6%
It’s important to seek information and not just guess.
November 17th, 2009 at 10:30 pm
What’s wrong with socialism? Anon is a direct beneficiary of it every day he wakes up in this fine country.
November 18th, 2009 at 1:57 am
I just find it lacking. I think we could be so much better than we are as a country right now. You guys do as well, we just have differing ideas on how to do it.
The reason I said it didn’t qualify as interstate commerce is because to my knowledge you cannot purchase Health Insurance over state lines. That’s not interstate commerce.
I did read the link. It advocated Medicare. Medicare, the system that drops and rejects the most people. The current way Medicare is set up it’s going to go broke in the next ten or so years. Expanding that isn’t my idea of reform.
Also Massachusetts still has people who don’t have health insurance. Which is what I said in the first place. That people will still duck it until they need it.
November 18th, 2009 at 2:25 am
1. “Medicare, the system that drops and rejects the most people.”
What on earth are you talking about?
2. Your view on interstate commerce is yours. These companies operate across state borders, regardless of what you can purchase. Your decision to not purchase health care in Oregon can affect somebody in Arkansas.
3. You said the number of uninsured in Massachusetts was still significant. I noted it was between 2-4%, and the lowest in the nation. I think the significance of that is self-evident.
November 18th, 2009 at 11:31 am
Just curious…does Group 2012 also believe it is unconstitutional for it to be illegal to not have car insurance?
November 18th, 2009 at 6:17 pm
That’s a state mandate not a federal mandate.
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
November 18th, 2009 at 6:19 pm
That the federal government threatens to deny highway funding to states who don’t have a liability law, is another story.
November 18th, 2009 at 7:06 pm
Hey, Group, why don’t you be a man and follow up on my response to you or concede?
Or do you expect me not to notice when you scamper off like the little troll you are?
November 18th, 2009 at 9:10 pm
Geez, at the risk of outing myself to Jeromy, I gotta address the constitutional argument here.
Anon: It would be nice if the Commerce Clause were interpreted the way you say it should be: that only commerce where the goods physically cross state lines should he government have the power to regulate. But, not only is that a basically impossible situation (since all commerce is fundamentally interconnected), but the Commerce Clause hasn’t been interpreted that way for at least a hundred years. The government can regulate if you grow your own crop of wheat in your backyard (_Wickard_). They can prevent states from legalizing marijuana because it affects the _illegal_ commerce in the drug (_Raich_). That the health insurance mandate isn’t within the commerce power seems slim as it is presently understood is beyond slim.
Same with the unenumerated rights argument. The 9th amendment simply says that enumeration doesn’t disparage other rights–it doesn’t create an active claim to rights. And the 10th only says that powers not granted to the federal government are reserved to the state and the people–and, as we’ve seen, the federal government has this power. In order to say that there’s a right to be uninsured, you’d have to claim that it’s something more closely approaching a fundamental right, a major liberty interest… and I don’t think that flies at all.
So it’s constitutional. Sorry.
November 18th, 2009 at 11:37 pm
Oh I know about how it’s being interpreted. It’s still wrong. All commerce being fundamentally interconnected isn’t an argument for the government being able to regulate whether I grow corn in my back yard. Same for Marijuana.
I suppose it is constitutional if you accept the view of the the Commerce Clause you just mentioned. However, in a traditionalist manner it’s nowhere near being constitutional. This type of power is not mentioned in the slightlest. Oh, and the word “life” in “Life, Liberty and the Pursuit of Happiness” doesn’t count.
Jeromy, I found that bit of infor from the AMA’s National Health Insurance Report Card. I worded what I said before wrong. I meant “denies the most people” in stead of “rejects the most”. Here: http://www.ama-assn.org/ama1/pub/upload/mm/368/reportcard.pdf
Just scroll on down to page 5 and look at the denials section if you don’t believe me.
November 19th, 2009 at 12:36 am
ajkamper: Outing yourself? Is there something I should know about you, aj? Hmmm…
Anon: Sorry, but calling yourself a traditionalist isn’t going to overturn any court cases. And demanding that everything in the government’s power be literally spelled out isn’t even traditionalist. The Commerce Clause doesn’t list anything specific, except to give the government the power to regulate interstate commerce. Denying the constitutionality of programs you don’t like because they aren’t specifically enumerated is nonsensical. If they’re classifiable as interstate commerce, they’re regulable.
November 19th, 2009 at 8:28 am
Anon:
I’ll admit, I think it’d be nice if we had a less expansive Commerce Clause jurisprudence. This is the only issue ever that I agree with Justice Thomas on!
But we gotta say what’s constitutional or not NOW, not what we wish the law says. And on that score, the article Jeromy posted is quite right.
November 19th, 2009 at 10:36 am
Jeromy: Okay let me get something straight right now. In our current system can you buy Health Insurance across state lines?
Because I seem to be confused on this issue. I was under the impression that I could not buy a policy in a different state from where I live. That isn’t interstate commerce. So it’s not regulable. I suppose I’m wrong though, which in that case, regulate the shit out of it. Costs will still go up.
aj: It’d be nice if more of our domestic policies were less expansive. But ah, C’est la vie. I suppose your right though, technically it does qualify as constitutional under the current warped view of the Commerce Clause. Still, I don’t think this is the answer.
November 19th, 2009 at 12:41 pm
It’s not that weird, anon. Think of it this way: most health insurance companies are these big national firms, forced to technically subdivide into smaller companies even though the brand is the same and to some extent the overall direction and management is the same. To a great extent, then, the management of this commerce is performed by a corporation shunting capital (not necessarily money but capital) across state lines, existing everywhere and nowhere.
Regulation of a corporation such as this is legitimately interstate commerce even though the specific transaction happens within one state. Think of it as the stream of commerce–even though the final transaction happens in one state, there’s been a whole host of other transactions with significant national impact.
The Founders never imagined that commerce could behave like this, and so never defined whether such actions are or are not commerce.
November 19th, 2009 at 5:53 pm
What he said.
Considering today’s CBO numbers, I think the worrying about cost needs to be moderated. There’s more work to be done cutting medical costs in the long term, but more effort has been made to get this bill to pay for itself than anything we’ve seen in a long time. If we practiced this much due diligence during the Bush years, we’d be sitting much prettier today.
November 19th, 2009 at 9:08 pm
Ah, okay. Well that makes sense.
Still I have my doubts that the government will make it cheaper.