Editor’s Pick
APRIL 13, 2012 9:24AM

Obamacare: Unconstitutional, but Necessary

Rate: 7 Flag

When I listened to the debates about the Affordable Health Care Act in front of the Supreme Court justices the other week, I had one recurring thought:

Why couldn’t we get a lawyer who didn’t stutter every time the law was challenged?

My second thought was: Yes, of course Obamacare is unconstitutional. Or, more particularly, the individual mandate is.

Yes, you can argue that, already, no one can be denied service at the emergency room (a bill passed under Reagan), despite their inability to pay.

You could argue that having health insurance could encourage more people to go to the hospital for preventative care and therefore greatly improve the health of our nation… particularly in the long-term.

You could argue that most people who need doctors and don’t have insurance just go to the emergency room… which means that 55% of all ER visits are now unpaid. Sure, the individual mandate may fix that, but, really, too bad.

Because something would lead to a healthier and happier nation, just because it’s the right thing to do, doesn’t mean that it’s constitutional.

In my mind, the “let ‘im die” folks are right. In strictly constitutional terms, of course.

The individual mandate is unconstitutional, because it requires people to purchase a product.

The argument from the defense is that everyone will use health services at some point. And, er, the Affordable Healthcare Act would be completely untenable if the risk wasn’t spread across as broad a pool as possible.

Unfortunately, since every Supreme Court decision marks some kind of historical precedent, passing a law that allows the government to make people purchase products is seen as a free pass for all future socialistic measures.

But let’s be realistic about the individual mandate: not everyone uses healthcare. Some don’t make it to the hospital in time.

How am I supposed to know if I’m going to actually use a hospital until I’m at one? Am I right?

But if Obamacare is socialism, I reserve the right to call Medicare and Social Security socialism.

After all, there’s no assurance that I’m going to reach the age of 65 and become eligible for these programs. Instead, my money is simply taken from my paycheck and deposited into some ethereal Fund.

Why can’t I opt out? After all, if Paul Ryan has his way, Medicare in its current form most definitely won’t exist when I reach the golden years, anyway.

And the Obama administration has raided the Social Security trust fund multiple times to artificially stimulate the economy. Who knows when they’ll strike again?

I think anyone under 30 should be able to opt out of Medicare and Social Security. These programs were created when people had an average life expectancy of about 60 and 69, respectively, but now the “super senior” population is exploding, and the overall senior population of the United States is going to reach unprecedented numbers in the coming decades, while population flat-lines.

By 2030, Medicare enrollment is expected to increase from 48 million to more than 80 million, while the number of workers supporting the system will drop from 3.7 to 2.4. Spending, overall, is expected to increase from $560 billion in 2010 to over $1 trillion by 2022.

By 2035, only 50% of Medicare Part A will be covered by existing payroll taxes.

And the people on the bottom of this upside-down pyramid are expected to pay for those at the top?

But being forced to pay into Medicare & Social Security isn’t socialism, because the programs were instituted a long time ago?

I would argue that these programs aren’t socialism, because they are the right thing to do. Just like The Affordable Healthcare Act.

My question is: Why are so many conservatives (about 50% of tea partiers) demanding my money for government-funded healthcare & pensions, then saying, if I’m unemployed or a part-time worker, I can’t have any myself?

Yet the deification of our slave-owning founding fathers continues, even if the Constitution was just a tool to keep the lower classes from rebelling against the landed interests of the burgeoning American overlords.

How many other documents from the 18th century do we take seriously today? Why has the Constitution become so Biblical?

It seems like only the terrible, horrible abuses of our Constitution are considered Constitutional.

The people most intent on preserving the Constitution (ahem, Republicans) are the ones who have done the most damage to it, a la The PATRIOT Act and, so recently, the “Anyone Can Be Strip-Searched if Arrested” bill.

Or whatever it’s called.

But ask people to pay a little extra to make the whole country healthier? That’s suddenly unconstitutional? 

Sometimes, I think that the welfare of society should trump capitalism and the Constitution, if that crumbly document gets in the way. Besides, didn’t one of the founding fathers touch on this subject?

But sure, let’s vote against a healthcare law and vote for strip-searching anyone who gets arrested at a protest. Why not?

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Excellent post... I invite you to read my very first post on Open Salon:

Seems like we're on the same wavelength.

Again a very good post.
@jmac1949 Read your post - thanks for sharing and thanks for reading!
Blucey... this is a great post. BTW, I studied Gerontology. One of the major issues in all of the industrialized and western countries is the aging of the population. It is unprecedented in history.

Complex subject. Good essay.
I'm still thinking that if requiring medical insurance purchase is unConstitutional, I must be owed a lot of recompense from my auto insurance carrier...which is also mandated by law.
Could you point at the clause in the Constitution or the case in jurisprudence that shows Obamacare is unconstitutional? Despite the headline this post was given in inexplicable promotion, neither Soc Sec nor Medicare are in conflict with the Constitution.

The conclusion that we need to ignore the Constitution to get certain things accomplished shows little understanding of the document. Overall, there's not much in the way of understanding or insight on display here.
What is right vs. what is law? I hear America grinding away on this for some time .... possibly the mid century. We have to sort out what we value: at some point there will be a Grand parent, aging aunt or uncle, the whole continuum of pain and illness will take many; are we responding with, Not my problem? Some of us really do care. The idea is, this could be in your family, your mom or dad -- who simply has nothing left. I love the 'Let 'em die' remark from one of the debates. This shows us at our worse. The reason people want to be here is because we have a vision beyond this frontier/pioneer or Dust Bowl logic. If you need the freshening of how this plays out, read Shirley Jackson's, "The Lottery". Or watch 'Life Boat". We are better than the TP'er 's present us to be. Most on OS feel strongly for being on the human side of the equation.
It will be here for some time. Where are the solutions? How strong is our soul? Our will to make things right?
"I would argue that these programs aren’t socialism, because they are the right thing to do."

With reasoning like this, it's little wonder you impressed the OS editor. Consequently, yours is an exceptionally well deserved EP.

This comment places me in limited agreement with PJOR's comment. For that alone, you can be considered the "Great Uniter".
I think you offer a good originalist reading of the Constitution with a twist. However, I think you undervalue the widely accepted role of the judiciary to interpret the Constitution "as a permanent and indispensable feature of our constitutional system," as one widely quoted meme has it. That's what keeps our Constitution as a living document. It's a delicate balance to be sure, and I'm sure we get it wrong often enough in the heat of a political moment.

But the product thing has to go. Many commenters here have referenced the federal government's compulsion that people buy muskets, and ammo, and powder way back in the 18th century when the framers were still alive. The precedents of accepted powers are there.

But the real nature of the compulsion in the case you raise is that one join a risk pool, not buy a product. And yes, the mandate is uncomfortable and may be declared unconstitutional, which is really just acknowledging that this was a contorted method to bypass universal coverage under a national plan. Here's the deal, government has the power to tax, to compel behavior (the draft), and to provide for the common good. All of these enable the power to provide for health care, as it happens in so many countries. You could almost call it natural and immutable law, and that is where the framers began, with things that were self-evident, despite their failings and contradictions. It is in the Constitution and its amendments and it is in the preponderance of precedents under a couple centuries of jurisprudence. That's my view. I'm not sure where yours leaves us, thinking especially about the, as you say, "let i'm die folks," and your ironic thoughts in that regard.
Awesome post blucey.

As with all things political, it's only unconstitutional if someone else wants to do it.
Well done. I'd have enjoyed you as a student when I was teaching college expository writing courses. I posted some data recently on the costs of caring for aging populations, especially those with Alzheimer's. That reality alone makes universal health care a must in this country. The fact that we are so far behind other industrialized nations in health care is inexcusable.
KC - Your car insurance is NOT analogous to ACA. You do not have to drive car. And in fact, at least in TX , you don't even have to buy the minimum 20K liability coverage. You can put 20K in escrow and never pay the insurance company. The ACA mandate does not let me opt out, it does not allow for high deductible policies. My brother has a 10K deducible policy. That is perfect for him a he is retired but not medicare age. He is good for the 10K and will not fail to pay it and become a burden on me or you.
Why should the policy he can afford become illegal?

No on knows when they might decide to start driving. I have a friend who has not driven in 20 years because he is scared to.
It is possible that one day he will overcome his problem and start driving again. Should he be mandated to start buying insurance now because he may drive in the future? Same for a New Yorker without a car. One day he may leave NY and need to drive.

The car analogy has been beat to death and in fact was addressed in the oral arguments. It simply is not analogous.
Paul - "Could you point at the clause in the Constitution or the case in jurisprudence that shows Obamacare is unconstitutional? Despite the headline this post was given in inexplicable promotion, neither Soc Sec nor Medicare are in conflict with the Constitution."

It is not necessary nor possible to find such a clause. The list of things the gov cannot do would be infinite. It is the enumerated powers which says what it can do. If it is not in the list they cannot do it. If they try and get challenged, it is their burden to find it in the list not the other way around.

The gov needs to show the clause that allows it and also defend against any clause that might specifically prohibit it.
If the Solicitor General had simply presented your question as his argument he would have been laughed out of the court.

As for SS is not in conflict because:
1. it is a tax. Congress can clearly tax. The mandate is not a tax.
Single payer would have been th appropriate way to tax, but the votes were not there.
2. You can opt out. You don't have to work. Would you suggest the unemployed pay FICA taxes?

I use my brother as an example again. He has not worked, thus not paid FICA taxes, in 10 years (or income tax for that mater). He lives on savings and investment. Opting out is EXACTLY what he very purposefully did. He is not wealthy.
He didn't quit to avoid taxes. He did it because he was tired of working for the "man".
He has just enough to get by. Not enough as far as I am concerned. He lives a frugally on a calculated budget.
But the practical result is he pays no fed taxes.
Can we mandate him back to work? Can we tell him he is not allowed to have the minimal lifestyle he has?
He engaged in work at one time. Can we force him to continue to work until a date prescribed by Congress?
Blucey - good for listening to the audio. I think everyone in this country should be required to listen.

"Why couldn’t we get a lawyer who didn’t stutter every time the law was challenged?"
- Because he had no argument.

"Because something would lead to a healthier and happier nation, just because it’s the right thing to do, doesn’t mean that it’s constitutional. "
- No, it does not. The right thing is subjective.

"But if Obamacare is socialism, I reserve the right to call Medicare and Social Security socialism.
I would argue that these programs aren’t socialism, because they are the right thing to do. Just like The Affordable Healthcare Act."

-You can call it what you want. I have not heard any good argument that ACA is socialism. Single payer, good or bad, would be more likely be called socialism. Similarly SS is not socialism.
welfare would be more like it. You get a SS check if and only of you paid in. That is not socialism.

"I think anyone under 30 should be able to opt out of Medicare and Social Security."
- Anyone already can. Just don't work. But it get your point. I agree. SS should be phased out. Or at least fixed so that it is not the pyramid scheme.

"Sometimes, I think that the welfare of society should trump capitalism and the Constitution, if that crumbly document gets in the way. "

If you are serious please wait until I am dead.
You are, as usual, clueless. The question does not, in any way, imply infinite powers. Your blather about the list of enumerated powers is pointless, as regulating commerce is an enumerated power.
Within the commerce clause, then, please point to the word that makes the mandate unconstitutional. Point to the necessary and proper clause and show where it applies the limit you claim. The burden of proof is on the challenge, because the plain language of the C clause and necessary and proper, as well as jurisprudence, shows no restriction.
That is why, if the mandate is ruled unconstitutional, it will be because a new standard has been created. The fact a new standard would have to be created pretty much negates the whole of your argument, as the limitations you claim applicable do not exist. The SG didn't have to ask the question, as everyone already knew there was no existing restriction and that, in fact, the law was well aligned with existing jurisprudence. I asked it here to make a point, as I knew blu couldn't support his statement any better than you did yours.

If anyone needs a laugh, your analysis is a good place to start.
No, it is crap insurance. Forcing people to buy insurance that is inadequate is evil and letting 27 million people still be uninsured is not okay either. it is evil and heartless and also economically incompetent since paying for those people collectively is a hell of a lot cheaper than all the gifts to the CEO vendors who should be not deciding life and death, mostly death, to ensure their own profits. Single payer expanded medicare for all is sustainable and humane. I am so sick of being asked to fight for lesser evil which really isn't lesser evil, it is a trojan horse. Don't help obama defy the constitution one more time. this is not a workaround for a rising tide will raise all boats. we know what yachts will be raised and what horrifying rafts will sink into bankruptcy and/or death. best, libby
Paul - You like to assert things.
- I am clueless.
- No one can answer your question because you are right and it was rhetorical .
- A new standard will have to be used to rule against ACA.

None of us here are constitutional lawyers. We have opinions. Maybe mine are not as well crafted as yours. But that does not mean you can't find a point in my writing if you want an respond with something other than I am clueless.

The last 2 statements you make above come across as if you should have been the congress, solicitor general and the court, because you are undoubtedly and unquestionable correct. Maybe you are the SG blucey needed.

But my simple understanding is this. The opposition asserted that nothing in the constitution gave congress power to enact such a law.
They could not point to the "nothing". They essentially asked, "What is the something"? We all could conjecture what argument the SG would use. The CC. And they did.

So what is so complicated? One side says they see nothing empowering the congress to make this law. The other side yes there is. They argue. The court decides.

Yes the burden is on the challenge. But they cannot prove a negative. The Constitution is a document that clearly limits is own powers. It was purposely designed to give limited powers to the fed and reserving all other powers (except a small list that are prohibited) to the states. That idea was necessary to get the states to form a union. The agreed to a union with a limited power given to that union. So many people seem to think it was the other way around. That the states were willing to give up just about everything for the union. As if the states were begging for a union that they could and would turn over most power to. They were not. And all were not anxious to join without a clearly limited fed.

The CC has been used to justify many things. That dos not mean it is unlimited. It means the CC has correctly been used to enact the fed power. Sometimes the laws went unchallenged and no one felt the need or desire or whatever to challenge. Sometimes a law was challenged and the CC was found to support the law. Sometimes not. Great.

Now it is up for question again and the court will decide.

If the SG's case is so obvious you will like the outcome. I still suggest the decision will not go down as politically as you think.

But if the decision is not what you like, all kinds of shenanigans, bias and activism are asserted. The judges are incorrect, bias and have no understanding of jurisprudence.
You thought an extremely relevant question was laughable. You like making assertions also, the difference is yours lack connection to relevance.
The Constitution limits power and the ACA entered the Court with the presumption of constitutionality. At least in theory, as the grilling by a few of the justices shows the burden of proof shifted to address what isn't there. Given the "what ifs" of imaginary and illogical extrapolations posed as serious questions, it's a wonder the SG didn't ridicule the justices for conjuring up a silly line of inquiry of such irrelevance it could apply to any question. Mother's milk can lead to heroin addiction...every male baby could be Hitler...mandates can lead to enforced broccoli.

Basically, the challenge relied on a laughable assertion that healthcare insurance is like any other market--denying it's uniqueness both as a business and as the main driver of federal debt. This blatant foolishness so the rational limit--nothing else in the economy has the same undue effect on debt--can be denied, opening the way for the parade of horrible fantasies on "same as" mandated purchases. It's a crap argument, but it starts smelling better, to some, once it's given a S Court imprimatur.

Also and ironically, that the mandate was unique--unprecedented. While it lacks Court precedence, G. Washington signed on in 1792. The mandate actually only applies to a small segment of the population, and the method by which it's applied and enforced could be accomplished with a tax credit/penalty incentive, so the core of the argument is semantic. This is denying it due to what it's called, not what it does.

Then the equally silly argument that led to the observation one could be regulated the moment they showed up at hospital requesting service. The question being insurance, it's obvious it's not the kind of thing sold at the point of need. The act of showing up means that person, like all persons in America, was part of the insurance risk pool. The only difference is between paying or non-paying members. Thus, nobody is forced into commerce in order to be regulated, despite that specious claim.

This case is nothing but politics and ideology, based on absurd extrapolations in order to get around the plain language of the Constitution and C Clause jurisprudence. The request for a "limiting principle" that answers absurdities and ignores the true limiting factors just shows how desperate the ideological goal and how craven the "conservatives" who delivered the dooty.

That said, it's a sucky law overall, something "better than nothing" that doesn't even begin to approach "what works best." I'm not sure what the ruling will be, but between the number of hours it was scheduled (giving the appearance of undue importance) and the nature of the questions, it was being set-up to be knocked-down.
However, under normal consideration and absent green men from Mars extrapolations, it's very much constitutional.
The "individual mandate" is most certainly NOT unconstitutional. (I hate arguing a double negative, but, there it is).

There are numerous examples of government requiring the purchase of a "product". I never hear of a constitutional challenge to any of them.

I am required to purchase Automobile Insurance if I wish to own and drive an automobile. Homeowners and Mortgage Insurance if I want to get a federally guaranteed mortgage.

I am required to purchase a license to drive, fish, hunt, own a gun, practice Medicine, Law, Nursing, Social Work, Teaching, etc.

Unless covered by a government pension plan (required), I am required to pay into Social Security and Medicare.

Now, hopefully, I'll never need to use my Auto and/or Homeowners Insurance. But I have it, nonetheless. But I will certainly require some level of Healthcare at some time in my life. Isn't it better to have some kind of coverage in place rather than simply using ER services?

I agree, National Healthcare IS the right thing to do. But there are no prohibitions against it in the Constitution.
Paul - you and I can go back an forth . We simply disagree. And continued writing is not going to help. You call the arguments ridiculous. I do not think they were ridiculous.

But Michael's comment after yours shows me that people simply cannot understand or do not want to. Every example he gives has been argued to death on this post alone much less everywhere else in the universe.

Every example comes with a big "IF is want to do x I must pay this or that. Micheal is free to not engage in any of the examples he gives.

Micheal - pay of your house an NO ONE will make yo buy insurance. Will you like that to be mandated even if you already own your home? See how that is unfair.

You need to be liable for damage IF you drive. But you don't need to buy insurance. You can put money in escrow. See how that is fair. Put up escrow and you don't have to do business with anyone.
Do you have to have collision insurance. No. Not if you own the car. I have never had a car loan. Should I have to buy collision so yours can be cheaper? See how that would be unfair because I buy a car with cash and you borrow money. Don't want to pay collision,
pay cash. See how that is fair and not a mandate.

You pay SS if an only if you work. And you get benefit if and only if you have paid in. See how that is not unfair and not a mandate.
And not unconstitutional.

All the other things are choices.
A medical license. Sure. why not? Not unfair unless we assume everyone may work one day in the medical field and therefore they should all pay for a license now.

There are multitudes of people that do not engage in any of the things you mention.

I can find a person in a heartbeat that does not
- Own a home
-Own/drive a car
- Hunt or fish
-Practice medicine
-Own a gun
- Practice Law

I have a family member that fits the above completely.
Which of the above should he be required to purchase?

Can you not see that if ACA is constitutional, the gov could then have a perfect right to make my family member pay for all those things?

Am I being silly to think congress would do sch a thing? Well I don't trust the intelligence of congress to not do stupid stuff.

Do you want to pay for a fishing license even if you don't fish? Do you think that is absurd and will never happen? I don't.
I can easily make an argument that you in fact do engage on the commerce of fishing. Do you ever intend to eat fish again?

No, the things you mention ar not challenged because they are not unconstitutional.
Paying money simply because you exist and you might one day need medical care to keep existing is bogus.

What about OTC heath care. Maybe I should be mandated to buy vitamins so that can be cheaper for everyone. That would be a very logical extension of ACA.

And as I have said before, if ACA stands the gov will use that precedent to make you buy something someday that you absolutely abhor.
Be careful what you ask for.
Well if they can say that "congress shall make no law respecting the establishment of religion" means god-mongers go tax free making the rest of us pay for their arrogant little "I KNOW what God wants" garbage, because it works for "The general good," and can say that money is speech and advertising is properly tax deductible and that corporations are people (that was done in the 19th century to enable the building of the transcontinental railroad) then they can say making people pay for more universal access to health care is ALSO something that serves "The general good." Because it seems like they can say any damn thing they feel like is constitutional. And if not, then single-payer and it gets done with taxes, regardless of who likes it or not -- I don't like war, but I have to pay for it via taxes, no matter how needless and politically self-serving it is. (If they can -- as they did -- turn down a death penalty appeal despite proving the innocence of the person about to be executed because "innocence in and of itself does not justify commuting a death sentence," then they only read about the constitution in Bizarro World comics.
An absurd argument doesn't help. The government already has the "power" to mandate purchases and has since 1792, at least. It is the height of unreasonable to suggest one will lead to the other; politics wouldn't allow it. It seems we get these purchase mandates once every 220 years, so a trend is being established. That trend says if this awful mandate flood was going to happen, it would have by now.
Your argument is silly and has to assume an out-of-control government, not answering to politics. If that's the case, you have bigger problems than knowing some will have to buy insurance. Believe it or not, it was widely accepted that the federal government had to have some general powers. Those that didn't agree were basically against having a Constitution.
It was acknowledged that as reasonable persons we can grant that the representatives we send to DC aren't out to take over the country and apply arbitrary laws. Democracy is a limit to general powers, something that shouldn't have to be pointed out, but for some needs to be explained.
Your argument is really concerned with some ambiguous definition of what powers the federal government should have, this being a near-pointless exercise in governance because it doesn't, for a moment, consider practicality and function. It rests on fantasies and has no more compelling motivation beyond "because."
How can you argue that Obamacare isn't constitutional? While the court is out on how the Justices will decide, most observers will agree it will be a close decision. If the individual mandate is overturned by 5 to 4, it will mean that almost half of the country's final authorities on the constitution think it IS constitutional.
RE: unconstitutional mandates

In 1790, the First Congress passed a law requiring all ship owners to insure their sailors for health care. It was signed into law by 22 signers of the Declaration of Independence and George Washington.
RE: Obama raiding Social Security trust fund.

Every POTUS since Lyndon Johnson has done the same thing.
RE: fiscal solvency of Social Security

The last time I looked, the tax cap on Social Security was $91,000 a year in personal income -- although it may have been increased to $250,000 a year personal income. All that is necessary to guarantee the solvency of Social Security is to raise the income ceiling on the Social Security tax cap.
In health care, insurance has been
sold for coverage against the unlikely,
and it's been sold as if it would
cover the likely.
It has in reality been aimed at not
covering the likely, and when the likely
has become apparent, its coverage has
been in a feudal-imitative manner .


In health care, insurance has been
sold for coverage against the unlikely,
and it's been sold as if it would
cover the likely.

It has in reality been aimed at not
covering the likely, and when the likely
has become apparent, its coverage has
been in a feudal-imitative manner
(men (and women) owning men
(and women.))

Understand simply, Medicare exists
because a health insurance cartel
didn't want to cover older persons.
It's national health insurance for
unwanted customers.
Rather than a "public option,"
ObamaCare replaces this...

Considering particularly that over 40,000
Americans die prematurely annually from want
of health coverage
(their cost is shifted into your premium but the
cartel is only responsible for a predefined
cartel-controlled reduced risk, )
it's as though, in the movie "Jaws,"
the leader
of the Amity Town Chamber of Commerce
succeeded in perpetually, continuously
keeping the Amity beaches open even as
people kept right on having their limbs chewed
off by a great white shark. It's expensive for all
of them, but he and his businesses make out.

...with this:
the Government paying for most
others the cartel doesn't care to
cover (along with a statutorily provided
quite large profit margin guaranteed and
only based on volume (more need, not
incentive for prevention, while, in the long
run, only preventionism will contain cost, and
while, in the meanwhile, only those who don't actually
do home budgeting don't realize we can't afford
anything else.))

Just moving to a large-profit-guaranteed,
volume-based health delivery compensation
program for a statute-protected oligopoly
is actually worse than this.
Imagine the impact of removing immunity
from the anti-trust laws and NOT setting
a statutory level of profitability. Then,
assist the industry in setting up a health
maintenance infrastructure.

However, a system that is not
"asymmetric" in that manner is
otherwise easily created.

The closest parallel to this would be Amtrak.
Passenger car travel is far more costly than is
mass transit, in many/most instances
(the exceptions
are where mass transit programs are "pre-textually"
created for self-failure or for purposes of "pork,")
measured in cost per passenger-mile, but it wasn't
profitable enough or profitable at all, particularly,
by historic chance, when air travel became popular.
So, naturally, rail had the Government take it.
That's rather "asymmetric" too, wouldn't you say.

This can be returned to a non-asymmetric state
by indexing need of application vs. volume
disadvantage, followed by a mechanism for
compensating for the private entity's
involvement in a less inviting
market segment.

However, in the case of mass transit, the roll o
ut of all the flex tech, combined with IT, and
the integration of different systems may actually
be better done by government, so long as
government's goal is serving communities,
not sellers of hardware.

Just curing asymmetry
isn't such a chore.
Some Basic Aims, Here With An
Application Modeled on a
Modified Carbon
Tax Scheme


private HMO's: have them take high
risk people but have a risk-index
assignment for each

Let the government reimburse for variance from
a risk mean.

The carrier gets an incentive to keep
its people healthy and pockets the
difference on reimbursement.

Firms still only taking risk-free
patients can pay to the state on a sliding
scale risk adjustment.

in application, incremental from this

Now, as to legal issues

Particularly those with individual policies and with (a)
risk factor(s) have been unable to move cross-state-
borders so as to take advantage of job and / or real
estate opportunities.

They are left with a choice of "go naked" or "premium
death spiral."

Does "interstate commerce" resonate differently now?
How about "monopoly power?"
Actually, the cartel currently enjoys statutory immunity
from the anti-trust laws.

Extra-curricular surfing:

Sen. Richard Blumenthal,
2/5/11 (C-SPAN VIDEO:)
Laws traditionally are first
presumed Constitutional.
Interstate commerce has been the basis
of affirmative obligations.
1798, and signed into law by Adams.

This part, from my comment below
(that's where this link takes you)

means, in essence, you are already paying
against your own volition for the uninsured's
coverage, though your carrier's pre-defined,
limited risk means it gets a "Go To Pre-Defined
Profit, Do Pass Go" pass.
I agree with the spirit of this post, but I don't see any solid reason for you to say the mandate is unconstitutional. It seems to have become a fashion to say that if something is not explicit in the Constitution, then it is forbidden by the Constitution. Especially if it is something I don't like, or something that involves government exercising it's power. But this is merely a personal bias, a fashion of the times, an attitude born of the hatred and suspicion and fear of government.

In fact, there is nothing in the Constitution that says the government may require citizens to purchase a product, but there is also nothing that says it is forbidden that the government may require citizens to purchase a product.

Instead it all comes down to interpretation of the Commerce Clause and the Necessary and Proper clause. If you feel, as do I and many many others, that the health care industry is substantial enough that it may be regulated by Congress as part of it's right and duty to promote the general welfare, and if it may do what is Necessary and Proper in fulfilling that duty and that goal, then of course the individual mandate is Constitutional once you actually understand the integral role it plays in ending the abuses of the commercial insurance industry that are addressed by guaranteed issue and community rating.

The mandate is not a capricious abuse of government power; it is a crucial element of a reasonable solution to a problem Congress has the Constitutional right and duty to solve.

Opposition to the mandate is more about hatred of Obama than it is about protection of the Constitution. Up until the time Obama was elected the mandate was an idea widely praised by Republicans, including Mitt Romney, as the most sensible way to promote personal responsibility in a commercial insurance marketplace.

Obama, on the other hand, during the election opposed the mandate, and opposed the mandate as part of his health plan after the election. He was talked into it by conservatives and moderates as a necessary compromise.

This history reveals what a complete sham the opposition to the mandate by Republicans is, and how false and shallow are the claims that it is unconstitutional.
ONL - you have not looked in a while. Last time it as ~ 91K was 2005. it is now 110K. Up from 106K last year.
Malunsinka - It would also mean that more than half think it is not.
Paul - to me a gov is out of control when a law with a major impact on the future of this country is passed by congress and executive controlled by one party. 224 - 206 with no GOP votes in the house.
Jr. dems have their careers sacrificed while the elite get to vote no to save theirs. Exactly 60 dems in the senate because of a 2nd count election of Franken. Something that is now common place. 2nd counts are now assumed to be better than first counts. Scientific method says neither count is good if they give different results. As a chemist I learned that you need to measure 3 times and get the same answer to accept the answer. If one is bad, start all over again. Don't stop until 3 answers in a row are the same. 2 counts that don't jive simply means they are both bad. 3 in a row that match is scientific method. I will bet my life that anything counted twice with different results will proven that both are incorrect when the 3rd, 4th and 5th counts are taken. It is near certainty that 2 differing counts are BOTH wrong.

Yes it is as unlikely as every 220 years. Because that control is unlikely. It lasted exactly one election cycle.

If a law of this magnitude can only pass in one specific congress something is wrong. No law should be this close a vote and this politicized. If it is so damn good why can't it pass again now?
My guess is that even less dems would vote for it now because the people are pissed at the law and how it was done.
Can you honestly tell me the way it was done is the open kind of gov you are proud of? Or does the end justify means for you?
The means sucked and the people don't like it.

This law has no chance of passing again for another 220 years because the votes wont be there.

How can you actually support a law that Pelosi say has to be passed so it can be understood. That was not an out of context statement.
She was serious. And it is obvious few if anyone really understands it yet. Corporate lawyers and small business are probably going nuts trying to know what to do whether they like it or not.

This was all political crap. Isfsingle payer is right, then let's pass that. But the votes were not there.

You seem to be the better historian that me. So tell me when any law, either of significant magnitude, or something not very significant at all, passed under these conditions. How may laws pass with the 60 senate votes from only one party and only yes notes from same party in the house.

Yes our reps are assumed to do what is right. That does not mean they can't get it wrong. It is clear the congress that passed this law does not represent what the people think today. It is one thing to change a law over time because people don't like it. It is another for people to hate it before it even takes goes into full effect.

As for slippery slope absurdity I will give you the same challenge I give others. Instead of implying I am absurd, why don't you fes up to one example when you know the absurd slippery slope was used to do something you don't like. Something I could have said "it won't happen to you Paul" but it did happen to you.

And the real issue here is this. why wasn't it just made part of the general tax revenue or a specific tax like FICA. Because Obama made a stupid campaign promise. Don't raise tax on under 250K.
Since when did 250K become the people that can't afford a tax burden. Obama dose not really believe that. I was a good campaign promise but put him in a box for the mandate.
If it had been a tax there would be no SC challenge.
Except maybe Equal Opportunity as Obama seems to be able to exempt anyone he wants whenever he wants. Another reason people are pissed. It is a mandate except when Obama says it is not.
Work for a union, no worries. Own McDonalds and have low paid workers, no worries. You get a pass. The very people that need it don't get it.
This law is crap.
That is an even more absurd argument. Republicans stand against everything Obama, even a Republican initiative--the insurance mandate--so it's a bad law. Hardly worth a sentence, much less a few paragraphs.
There would have been as equally a partisan court challenge if it was exactly a Medicare expansion. When a half-ass legal challenge can be issued based on forced broccoli consumption, it's just as easy to come up with another "unique" legal theory against expanding Medicare.
You don't seem to get what this is all about. The law itself is nearly inconsequential.
Paul - what is comprehensible is how you love to frame arguments. You re good at it.
Yes, if it were medicare expansion there may have been a court challenge, as it was challenged as well in the current case. And lost in the lower court.
You know what that is about. Requiring the states to come up with money they can't "print" like the fed can. How in the world medicare got in the situation it is in is beyond me. All citizens who work pay in to a fed tax system and somehow the same citizens have to depend on the state participation to get it back in the form of medicare. Medicare coverage should come to the citizen directly from the fed just like a SS check. There should be no required matching funds from the state for a fed tax payer to get his benefit.
Not saying I don't want medicare. I a saying why has is become a pseudo state program? The states never got a penny of that money when it was collected. How are they supposed to magically get the matching fund required. The gov may win this portion as it did in the lower court. But is it fair to the people. How

How lovely that is. The gov argument is the state can opt out. Yes, the state ca opt out of matching funds thus the people of that state
get no medicare. But the people of that state can't opt put of paying the medicare portion of FICA from their paycheck. How is that fair? Where does that money go? A citizen of this country pays a fed tax designed to give him health care in old age but gets nothing unless his state submits to whatever demand the fed puts on them.

Maybe we should get the state involved in a pseudo SS check. Lets deny citizens their SS check unless their state agrees to match it.

But, that is not what I argued in the first place and you know it. You intentionally spun my single payer argument into medicare expansion because you know that is also a contentious point as stated above.

I did not say an expansion of medicare. I said single payer. In a true sense. A federal gov program that collects enough tax to cover it and leaves this state crap out of it. If states want to supplement it, fine. Nothing wrong with that at all. For instance if a single payer has a copay and one state wants to raise taxes to cover the copay , good for that state. Nothing unconstitutional of convoluted about that.

Some may have not liked SP , but it would be a hard challenge under the taxing power. So do you care to directly address that specifically instead of something I did not suggest. I suggested SP funded by a federal tax would not be unconstitutional. So why not go with that?

And you ducked the question of if a slippery slope law ever affected you negatively.

And you ignored the extremely political conditions this crapy law was passed under and the exemptions handed out by dictator Obama.

The window to pass this law is gone even if the constitutional issues are corrected. That is not always the case when something is struck down. Fixing it is usually possible. But not this one. The support was lost in a mid term election precisely because of the the manner it was played out. Did people hate Bush policies? Yes. Did they then give the dems full control? Yes? And the dems got greedy and procedurally stupid.

Whys just answer the question. Why didn't the dems just go for the single payer. They had control. It is what Obama and dem leaders wanted from the start. What happened? Why wasn't it pushed through like the ACA was? They had the control. But they had Obama tax promise to keep.
The ACA is unconstitutional and completely unnecessary. Congress has the power to ask (or make) Us The People pay for the common good. It doesn't have the power to make us pay to make private corporations richer, even if there's a little backhanded public good provided in the process (and it's more than outweighed by the evils attached in this case).

We all seem to agree that increasing quality of and access to care is the right thing to do. Great, but it should be done without the mandate--in fact it can be done more effectively, simply and cheaply without the mandate. The only purpose of this bill is to drop a few pennies into the poor's right-hand pocket in order to distract them from the dollars being snatched from the left.

"Force 'em to go broke paying for substandard inadequate insurance" or "let 'em die" aren't our only options here, and there's no reason we should accept either one at the expense of actual reform.

if Obamacare is socialism, I reserve the right to call Medicare and Social Security socialism.

You seem to be mixed up there. Medicare is a socialist program. Obamneycare is the complete opposite. It's enforced vulture corporatism.

ask people to pay a little extra to make the whole country healthier? That’s suddenly unconstitutional?

Of course not. Forcing people to pay a little (or rather a lot) extra to increase profits for predatory private companies is unconstitutional. And evil. Why should we pay more to do that when we could pay a lot less and get full unrestricted care for everyone?
Your bio on the left side of this page provides the answer to your perspectivce--you're 24. When I was 24, I thought a lot like you.
The Constitution, like the Magna Carta, establishes a framework based on sound philosophical--and unprecedented thinking (for the 18th century or any century).
Many were aghast in the 60's at the Miranda decision. Would you argue that persons being questioned should NOT be apprised of their rights? Many were aghast in the early 70's over Griswold. Would you argue that government should dictate to people whether or not they can use birth control in the privacy of their home? Loving toppled laws banning interracial marriage. Would you argue that it should still be illegal?
And "Obamacare" attempts to have and "individual mandate". I don't know whether it's constitutional or not. I hope that it is and fear that it isn't. But the Supreme Court is going to make that determination--not me.
All I know is that we have a big fat health care mess on our hands. It's a mess for reasons too numerous to articulate.
What would YOU, in the wisdom of your experience and in the wealth of your expertise in constitutional law, do about all this?
Goodness, you go away for one weekend and look what happens!

I'm really grateful for everyone for reading & critiquing this post, it's very interesting to get so many different points of view, albeit with the obligatory condescending/name-calling harrumphing.

The point of my post (I think) was to really just wonder why the constitutionality of the individual mandate is being challenged in the first place, when it's such a clear way to support a, yes, very corrupt behemoth of a law, but a law that really communicates what America should stand for in the first place: unity & collective effort for the betterment of society.

Yes, there are better solutions, but they were all ripped out from the Obama administration's feet.

But what's the alternative? Continue to not insure millions of Americans or try to work with what we've got?

The logical flourishes in the Supreme Court remind me, just like Citizens United, that logic based on a subjective reading of a 200-year-old document, shouldn't always win arguments.
blucey--re: your comment--too bad you didn't say that in the first place.
blucey - "The point of my post (I think) was to really just wonder why the constitutionality of the individual mandate is being challenged in the first place,

when it's such a clear way to support a, yes, very corrupt behemoth of a law,"

The second part of your sentence is the answer to the first.
Some of us are just to silly and hard headed to accept a "very corrupt behemoth of a law," as an answer.

So many people talk about every other !st world country having some form of gov health care. Did each of these countries pass "very corrupt behemoth of a law," to accomplish it.

I am not a historian be somehow me thinks they did not get there
in the divisive way we did.
No disrespect to mr. blucey, but that latest reply and the original post are still based on a badly mistaken premise--the idea that Obamneycare is meant as a benefit to the nation, or at least a step toward better & more expansive healthcare coverage. It's nothing of the kind. If your jailer decides to loosen the shackles around your wrists a bit, but insists on shortening the chains and strengthening the bars of your cell at the same time, maybe gratitude isn't the most appropriate reaction. Maybe he shouldn't be believed if he insists it's all with your eventual freedom in mind.

The point of my post (I think) was to really just wonder why the constitutionality of the individual mandate is being challenged in the first place, when it's such a clear way to support a, ... very corrupt behemoth of a law

See Mr. Cole's reply above...

but a law that really communicates what America should stand for in the first place: unity & collective effort for the betterment of society.

If there was a public benefit to the ACA, maybe this would be true. But this law only communicates what America shouldn't stand for: crony corporatism and the predatory rich feeding off the poor. If unity & the betterment of society were the goal, there wouldn't have been a mandate at all.

there are better solutions, but they were all ripped out from the Obama administration's feet.

Maybe you didn't follow the meetings over the original bill closely enough? It was Barry O who chose to keep a public option off the table from the start and to ban any single-payer advocates from the talks.

But what's the alternative? Continue to not insure millions of Americans or try to work with what we've got?

Neither. The alternative is to fight for a good plan--one designed to benefit the public instead of the corporations.
The Government cannot force somebody to buy something just for being alive.
"You are as usual, clueless...", "If anyone needs a laugh, your analysis is a good place to start", "You thought an extremely relevant question was laughable." "This blatant foolishness...", "An absurd argument...", and again: "your argument is silly..", "An absurd argument doesn't help", etc. Really, Mr. O'Rourke, is this the best you can do? I honesty believe it is the best you can do, because only when people like you don't have any solid proof of the point they're making, they end up calling people names, make them sound silly, use again and again an abusive language - your intellect is on the level of the 5th grade bully, sorry to tell you that. You once told me that I, according to your observation, am not very bright (and I'm very grateful that you think so, because if you'd think that I am bright and that I am saying something right from your point of view, I would go and hang myself. That's how much I dispise what people like you stand for).

This post is written by a young man who is a product of our educational system: he has no respect for American political system, he doesn't understand (I'm not talking about knowledge) what our Constitution is all about, and he has no appreciation of what this nation achieved during its 200some years in existence. But he lives in the fairytale word believing that it's all right to take from one and give to another.

For me, who experienced a life under the government provided heath care for all, there is no question that Obamacare shouldn't (and I hope wouldn't) become a reality. And that's where our Constitution will help.

The vision of the founders was to set up a government that would remain SMALL and UNOBTRUSIVE via a system of checks and balances. That it has taken our government so long to get this big speaks well of the original design. The founders also knew the overwhelming nature of governments was to amass power and grow… Obama explicitly threatens to bypass Congress, thus aggregating the power to make and enforce laws in the executive. This clearly erodes the principles of separation of powers and checks and balances. It brings the modern presidency dangerously close to an elective dictatorship.

To allow our today's government to dictate to us what to buy and what to choose is UNCONSTITUTIONAL!
People who are outraged that the government can require individuals to purchase health insurance need to consider several important facts.

First, this is not simply a naked assertion that the government has the power to make you do anything at anytime, or that the government can make you buy anything it wants to. That amounts to a fearful slippery slope argument that is based on a very emotional and uninformed reaction to this issue. This is the assertion that the Commerce Clause give the government the right to regulate an industry that amounts to 16% of GDP, and has a profound impact on the general welfare of the American people. And it's an assertion that a carefully crafted set of solutions which are specific to solving widely recognized problems in the health care industry meets the description of necessary and proper to Congress' constitutional right to regulate the industry. This is a far cry from claiming the government can force you to buy anything at anytime, which is the extremist rant of those who know too little and react too emotionally to this.

Pretty much every state government requires all operators of motor vehicles to purchase auto insurance. Why is this not an equally profound outrage? Because people can choose to not drive a car? Not much of an argument really. Nobody can choose to not have potential medical costs, which would be the equivalent choice of deciding not to drive. Is it not outrageous because it's being done by states rather than the federal government? I don't really see the distinction there either. In either case it is a government enforced mandate. Given that the people who scream about Obamacare today have not screamed about this very similar insurance mandate leads one to suspect that no important political or economic principle lies behind this. Something a bit more elusive and emotional lies behind these unfounded objections.

In 1790 the federal government required ship owners to purchase health insurance for their seamen. This was signed into law by George Washington. This Congress included 20 framers of the Constitution, who all voted for the mandate. In 1792 Congress required that every able bodied male purchase a firearm. This Congress included 17 framers, 13 of which voted for the mandate. An attempt to repeal this mandate also failed, and only one framer of 17 voted to repeal. In 1798 the employer mandate for ship owners was revised to include hospitalization in addition to drugs and doctor's fees. At this time it was converted into an individual mandate that required seamen to purchase the insurance. This was passed and signed into law by another founder, John Adams.

To complain about the mandate, but to not complain about the fact that the uninsured demand that the government pay for their emergency room charges if they can't pay is hypocritical. And to argue thus demands a further response: how do you propose to deal with people who are uninsured and require major medical expenses?

The public has for decades demanded a solution to the problem of non-portability, that is the fact that private insurers, following their economic interests, refuse to cover people with preexisting conditions, and demand the ability to charge higher rates based on levels of illness. These practices can only be addressed in two ways: either abolish the private, profit motivated insurance market and institute a government takeover of the health insurance industry, or impose some new requirements and limitations on the ability of private insurers to refuse coverage. This latter incremental approach is the approach followed by the ACA because it has had bi-partisan support for over two decades. These new requirements on insurers are known as community rating and guaranteed issue. But to merely take those two steps alone would be financially punishing to the private health insurers; it would enable people to simply wait until they are sick before buying insurance, which would drive everyone's premiums through the roof or drive insurers out of business. The individual mandate is the third step in this linked trio of reforms that enables these reforms to work economically. The mandate is not a matter of outrageous government tyranny; it is a matter of taking personal responsibility for one's own medical risk. It is an integral part of a carefully designed incremental reforms to the private health insurance industry, and it is the only way to solve the problems of private coverage limitation and denial without a complete government takeover of health insurance. If somebody knows another way, please let us in on your secret.

The complaining about having to step up and take responsibility for one's own expenses sounds to me like a desire to evade adult accountability for health care costs. The opposition to the ACA is based on the same kind of uninformed Obama hating emotional hysteria as birther and Muslim Brotherhood paranoid conspiracy theories. There are no principled arguments for it, but only angry expressions of rebellion that are reminiscent of the protests of spoiled children.

If anybody wants to find a better way to solve our health care problems that is politically feasible and supported by the major professional associations involved in health care delivery and services, please be constructive and propose one. But just complaining about the individual mandate doesn't cut it, and taking the air-headed approach of saying "let the free market take care of it" does not qualify. That is as likely to be effective as Rick Perry praying for rain. It is already an empirical fact that such a system leaves too many people uninsured, and has no incentive to cover people with preexisting conditions. To recommend such a system is to recommend a barbaric and cruel punishment for tens of millions of Americans.
I detailed the case on Obamacare at some length. I also pointed out how inadequate Cole's arguments were and now I'll include yours. You have nothing resembling a valid argument or anything indicating even a base understanding of the issues.

ONL and Jeff,

The 1790 law was not healthcare insurance. It required a ship's owner to stock medical supplies and pay for a sailor's physician when needed. In that, it's pretty much like British law at that time.

It was part of a law detailing requirements of what ships should carry on board, including how much fresh water and bread.
It didn't include nursing care, just paying the doctor.

The 1798 law was true insurance and care beyond a doctor's visit. It was h-care and hospitalization.

the 1790 act: http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=257

the 1798 act: http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=008/llac008.db&recNum=86
Joseph Cole,
"How can you actually support a law that Pelosi say has to be passed so it can be understood. That was not an out of context statement. "

You are being dishonest here. If you look at the whole context, her comment means something other than people represent it to mean. People claim that Republicans didn't have a chance to know what was in the bill, and this was Pelosi's response, and that the bill was "shoved down Republicans throat". That is all part of the dishonest political theater that Republicans fabricated. Republicans had as much opportunity to participate as Democrats had, which involved a 10 month process of debate.

Pelosi made this comment in a speech to the National Association of Counties. And if you follow the whole speech it is plain that she simply chose her words poorly, and that in the context she meant something like: "there is so much controversy, confusion, and competing claims about the bill, and after it is passed, the general public will begin to understand it better".

Republicans have been able to get a lot of mileage out of cherry picking this and distorting its meaning because the cult following of FOX news never questions anything, never considers an alternate source of news, and never takes the time to understand anything that doesn't fit on a bumper sticker. Actually, a statement like this could be made about almost any legislation, but is particularly relevant for one that needed to be as complex as the ACA.

Perhaps Republicans think the "Cain proposal" is actually a smart approach to good governance: require that all bills fit on three pages. This would be a trial lawyers wet dream: bills so vague and general that they could claim almost anything in a court of law. This is totally moronic. But then almost everything so called "conservatives" say these days is moronic. It is rare that they make a claim that actually bears up to a sound fact based scrutiny. The problem is, their believers are so ignorant, Republicans don't need to do any better than that any more. FOX news has ensured that Republican politician's job is about as easy as convincing Christians that Jesus walked on water.