Merged Slaughter the House Bill / Pass without voting

[JoeTheJuggler]

But I will ask this: when is the last time a program like this did not end up costing considerably more than projected? Why do you think they always cost more than they're supposed to? I suggest that it is because this kind of cost hiding happens all the time. Both parties do it, so I'm not trying to score partisan points on this particular bill, but how many times are you going to trust these cost estimates when they always turn out to be gross underestimates of true cost? How many times would I have to kick you in the nuts before you start covering up whenever you see me?

And again, nothing is being done differently with this CBO estimate. And yes, the claim that there is some sort of "sleight of hand" involved in the CBOs numbers is the claim of a conspiracy on the part of the CBO to mislead everyone wrt to the cost estimates.

This is really the best estimate we have, and the net cost is negative.

Yes, they're just estimates based on future economic activity, and the farther into the future we go, the less likely they are to be accurate. At one point someone was complaining that it was deceptive only to carry the estimate out to 10 years.

And finally, I'm not sure your claim that CBO cost estimates always prove to be too low is true. I'd need to see evidence to support that claim. And if it's true, then maybe we need to do something about changing how the CBO calculates its estimates.

But none of this means that the healthcare bill is likely to increase the federal deficit at all.

 

[JoeTheJuggler]

Ryan's plan has at least some of the same sort of chicanery. Maybe less of it, since it scored as less expensive. Maybe more of it, since it scored as less expensive.

And of course Ryan's plan doesn't get us very close to universal healthcare, does it? I believe it's largely a state-based approach to reform, has no individual mandate, and very little by way of insurance reform either.

So, yeah, I would imagine it should come in with a lower cost.

 

[Freddy]

And again, nothing is being done differently with this CBO estimate. And yes, the claim that there is some sort of "sleight of hand" involved in the CBOs numbers is the claim of a conspiracy on the part of the CBO to mislead everyone wrt to the cost estimates.

This is really the best estimate we have, and the net cost is negative.

Yes, they're just estimates based on future economic activity, and the farther into the future we go, the less likely they are to be accurate. At one point someone was complaining that it was deceptive only to carry the estimate out to 10 years.

And finally, I'm not sure your claim that CBO cost estimates always prove to be too low is true. I'd need to see evidence to support that claim. And if it's true, then maybe we need to do something about changing how the CBO calculates its estimates.

But none of this means that the healthcare bill is likely to increase the federal deficit at all.

I'll look for some examples. But the problem is not with the CBO. It's that Congress, for obvious and self-serving reasons, gives them unrealistic assumptions to work with. It isn't a matter of the way the CBO calculates. The only thing you could do is prevent politicians from being self-serving weasels. Good luck.

One pseudo-example of this phenomenon is Romneycare in Mass. Waaaay more than predicted. It isn't CBO, because it's a Masschusetts thing, but the discrepancy between prediction and cost has the same explanation I think.

And it would not be CBO's fault at all. Their job is to say, "Okay, if you do A and B, it would cost this much and would expand/reduce the deficit by this much. If A and B are ridiculous things that are extremely unlikely to really be done, that doesn't affect the CBO score at all. Their job is to score based on the assumptions you give them. The prediction is only as good as the assumptions, and they have no say in the assumptions.

But this is really off topic, and we should really stick to the Slaughter rule.

 

[Freddy]

And of course Ryan's plan doesn't get us very close to universal healthcare, does it? I believe it's largely a state-based approach to reform, has no individual mandate, and very little by way of insurance reform either.

So, yeah, I would imagine it should come in with a lower cost.

This is accurate, as far as I know. Of course, cramming the individual mandate into the commerce clause is a huge stretch, since it would essentially be regulating economic inactivity. Or it would be considering "living" to be an economic activity, which would effectively do away with that whole "enumerated powers" thing. I would not be at all surprised if the Court struck that down. Without that, the rest of the bill is garbage. You can't pay for pre-existing conditions under this model without the mandate. Even if this thing passes, that's only the beginning of the fun.

 

[JoeTheJuggler]

This is accurate, as far as I know. Of course, cramming the individual mandate into the commerce clause is a huge stretch, since it would essentially be regulating economic inactivity.

I think the idea is that buying health insurance is economic activity.

At any rate, the fairly liberal interpretation of the commerce clause has plenty of history and a good 50 years of case law supporting it, so I doubt there will be any constitutional challenge to the individual mandate.

Even so, I'm fine with it falling under the "general welfare" clause, since that's really its intent. People with big and expensive medical conditions can't possibly pay in as much as they take out, so the only way to compensate for that is somehow to make everyone pay (to their ability).

I'd prefer it be done as a single payer system (we pay in via taxes) rather than through insurance companies, but it seems like the people who dislike the individual mandate dislike single payer even more.

 

[Freddy]

I think the idea is that buying health insurance is economic activity.

At any rate, the fairly liberal interpretation of the commerce clause has plenty of history and a good 50 years of case law supporting it, so I doubt there will be any constitutional challenge to the individual mandate.

Even so, I'm fine with it falling under the "general welfare" clause, since that's really its intent. People with big and expensive medical conditions can't possibly pay in as much as they take out, so the only way to compensate for that is somehow to make everyone pay (to their ability).

I'd prefer it be done as a single payer system (we pay in via taxes) rather than through insurance companies, but it seems like the people who dislike the individual mandate dislike single payer even more.

Right, but is not buying health insurance an economic activity? That is what is being forbidden: failure to buy a product. That is unprecedented, as far as I know. I'm not saying it's an open and shut case. Quite the contrary. Chances of a date with the Supreme Court: 100%. I wouldn't be at all surprised if the Roberts Court struck this down. In the last 15 years, the Supreme Court has been less deferential to Congress re: the commerce clause. The interesting question is whether a plaintiff would have to wait until the mandate takes effect before having standing to bring the challenge. It is possible that this question could hang over our heads until 2014 (I think that's when it kicks in) and then be struck down. That wouldn't be in anyone's interest. I hope for everyone's sake that they decide the question immediately, one way or the other. I'm not sure how to find an excuse for doing that though.

The general welfare clause is not an enumerated power of Congress. It's just part of the Preamble. Anything Congress does must fit under one of the powers spelled out in Article I sec. 8. Otherwise, Congress could regulate anything under "promoting the general welfare" and would never have to rely on the commerce clause to do anything. Promoting the general welfare is one of the purposes of the Constitution, not a power of Congress.

 

[JoeTheJuggler]

Right, but is not buying health insurance an economic activity? That is what is being forbidden: failure to buy a product.

If you want to look at that way, then you should also note that it's not a universal mandate.

That is unprecedented, as far as I know. I'm not saying it's an open and shut case. Quite the contrary. Chances of a date with the Supreme Court: 100%.

I'd bet money that it never reaches the SCOTUS--at least not based on this specific argument.

The general welfare clause is not an enumerated power of Congress. It's just part of the Preamble. Anything Congress does must fit under one of the powers spelled out in Article I sec. 8.

I'm speaking of the General Welfare Clause in the Taxing and Spending clause. It's the first one in Article I Section 8:

The Congress shall have power To lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

ETA: The mention of "general welfare" in the Preamble is not what is generally referred to as the "General Welfare Clause".

And to clarify things, the necessary and proper clause grants Congress the authority to pass legislation necessary and proper for executing these powers.

Promoting the general welfare is one of the purposes of the Constitution, not a power of Congress.

I couldn't disagree more strongly. It's one of the enumerated powers, as I've cited.

Again, I agree it would be preferable to rely on this power and adopt a single payer system (where getting everyone to contribute to their ability is based on taxation rather than compulsory insurance), but again, the people opposed to the individual mandate are more opposed to a single payer system.

 

[Freddy]

If you want to look at that way, then you should also note that it's not a universal mandate.


I'd bet money that it never reaches the SCOTUS--at least not based on this specific argument.



I'm speaking of the General Welfare Clause in the Taxing and Spending clause. It's the first one in Article I Section 8:



ETA: The mention of "general welfare" in the Preamble is not what is generally referred to as the "General Welfare Clause".

And to clarify things, the necessary and proper clause grants Congress the authority to pass legislation necessary and proper for executing these powers.


I couldn't disagree more strongly. It's one of the enumerated powers, as I've cited.

Again, I agree it would be preferable to rely on this power and adopt a single payer system (where getting everyone to contribute to their ability is based on taxation rather than compulsory insurance), but again, the people opposed to the individual mandate are more opposed to a single payer system.

Doh! And I skimmed Art.I sec. 8 right before I posted that.

But Congress appears to be relying on the Commerce Clause nonetheless. That general welfare clause must have been interpreted narrowly in the past, or else it would be the obvious (and first) choice. I'll do some research into how it has been interpreted. Reading the Constitution itself is never enough, because you can have situations like the Privileges or Immunities Clause of the Fourteenth Amendment, which has been interpreted to mean almost nothing, while the Due process clause has been used to do the work that you would expect the P or I clause to do. I'll report back.

 

[Meadmaker]

Ryan's plan has at least some of the same sort of chicanery. Maybe less of it, since it scored as less expensive. Maybe more of it, since it scored as less expensive.

I haven't read anything about the CBO scoring of Obamacare, but the scoring of Ryan's plan was a joke. He told them, and this is in no way exaggerated, to not estimate the effect that his plan would have on tax revenue, but to use figures supplied by his staff, based on tax revenue that would be collected without his plan.

It's ludicrous.

If I had to guess, I would guess that the recent scoring of the proposed health care legislation contained some equally self serving assumptions, guaranteed to produce a favorable result, but I don't know that for a fact.

 

[Freddy]

Okay, did some research, and I was right about the General Welfare Clause being interpreted narrowly. I'm still embarrassed that I read the section and completely missed that the clause even existed, but it turns out that the clause does so little that I didn't miss much. Besides, a little humility is good for all of us.

Here's a little bit on that clause:

Chief Justice John Marshall described a further limit on the the General Welfare Clause in Gibbons v. Ogden: "Congress is authorized to lay and collect taxes, &c. to pay the debts and provide for the common defence and general welfare of the United States. ... Congress is not empowered to tax for those purposes which are within the exclusive province of the States."

If mandating the purchase of health insurance does not fall under some other enumerated power (besides the General Welfare Clause), then it is the exclusive province of the states. That conclusion is required by the nature of the federal government as one of enumerated powers, as well as the Tenth Amendment. That explains why the mandate cannot be upheld under the General Welfare Clause, which explains why Congress is relying on the Commerce Clause.

If you need a better source than Wikipedia, I can find one. This is just the most convenient source, and I think it can be trusted for this type of question, especially since it just directly quotes the Supreme Court.

Also, I don't see how it wouldn't be a universal mandate. Every individual must purchase health insurance or be subject to punishment (I think only a fine, and not imprisonment, although that is strictly a matter of degree). That sounds universal to me. Are not all individuals required to buy insurance? I know some people get subsidies, but they still have to buy it. And it doesn't have to be universal to run afoul of the Commerce Clause. The Commerce Clause test concerns the nature of the activity to be regulated. The whole argument will be over precisely what activity is being regulated here. I acknowledge that reasonable minds can disagree on that question. It seems to me that everyone is denied the option of not participating in an activity that substantially affects interstate commerce. Does "regulating" interstate commerce include requiring participation in it?

 

[Freddy]

I haven't read anything about the CBO scoring of Obamacare, but the scoring of Ryan's plan was a joke. He told them, and this is in no way exaggerated, to not estimate the effect that his plan would have on tax revenue, but to use figures supplied by his staff, based on tax revenue that would be collected without his plan.

It's ludicrous.

If I had to guess, I would guess that the recent scoring of the proposed health care legislation contained some equally self serving assumptions, guaranteed to produce a favorable result, but I don't know that for a fact.

That's exactly what I had in mind when I posted that. I had read that criticism. But in order to know how bad that is I would have to know how much his plan would cut taxes, and perhaps also which taxes it would cut.

 

[Meadmaker]

That's exactly what I had in mind when I posted that. I had read that criticism. But in order to know how bad that is I would have to know how much his plan would cut taxes, and perhaps also which taxes it would cut.

All of them and lots. People could choose the current tax system or a flat tax of 10% for the first 100,00 dollars, and then 25% after that, after a personal exemption of, I think, 7,000 per family member. No tax at all on interest or capital gains. Corporate tax replaced with a different, smaller business tax.

And revenues would not only not decrease, they would continue to be the same percentage of GDP as with the current tax system! Somehow, this tax system would raise revenues equal to 19% of GDP!

 

[Meadmaker]

If mandating the purchase of health insurance does not fall under some other enumerated power (besides the General Welfare Clause), then it is the exclusive province of the states.

You can argue this all day long, and a lot of people would agree with you, but it has been many, many, years since any of those people sat on a federal bench.

If courts actually agreed with this, they could throw out half of the federal budget. A lot of people think that this would be a good idea, but it isn't going to happen. That argument was settled a long time ago.

 

[Freddy]

You can argue this all day long, and a lot of people would agree with you, but it has been many, many, years since any of those people sat on a federal bench.

If courts actually agreed with this, they could throw out half of the federal budget. A lot of people think that this would be a good idea, but it isn't going to happen. That argument was settled a long time ago.

That's not true. The Courts have never held that those borderline laws don't have to fall under an enumerated power, they have determined that they in fact do fall under one of those powers, usually the commerce clause. Ask any Judge or Justice, liberal or conservative, whether a federal law must fall under an enumerated power found in the Constitution, and they will say it does. They just disagree about whether particular laws actually do fall under an enumerated power.

For example, in 1995, the SC struck down the federal gun free school zones act, saying it was not within Congress' enumerated power under the Commerce Clause. That case introduced a new three pronged test for determining whether a bill was Constitutional under the Commerce power, and importantly, it also began a trend of giving less deference to Congress on that question. It absolutely does still matter.

 

[Freddy]

All of them and lots. People could choose the current tax system or a flat tax of 10% for the first 100,00 dollars, and then 25% after that, after a personal exemption of, I think, 7,000 per family member. No tax at all on interest or capital gains. Corporate tax replaced with a different, smaller business tax.

And revenues would not only not decrease, they would continue to be the same percentage of GDP as with the current tax system! Somehow, this tax system would raise revenues equal to 19% of GDP!

That sounds pretty silly.

 

[Meadmaker]

That's not true. The Courts have never held that those borderline laws don't have to fall under an enumerated power, they have determined that they in fact do fall under one of those powers, usually the commerce clause. Ask any Judge or Justice, liberal or conservative, whether a federal law must fall under an enumerated power found in the Constitution, and they will say it does. They just disagree about whether particular laws actually do fall under an enumerated power.

For example, in 1995, the SC struck down the federal gun free school zones act, saying it was not within Congress' enumerated power under the Commerce Clause. That case introduced a new three pronged test for determining whether a bill was Constitutional under the Commerce power, and importantly, it also began a trend of giving less deference to Congress on that question. It absolutely does still matter.

I stand corrected, at least partially. What I meant was that a lot of people are quite sure that the constitution must be interpreted very strictly and that unless a power is very specifically called out, Congress is acting unconstitutionally when they go beyond the strict limitations. The fact is that the federal government gets into all sorts of business that the founders would not have envisioned, and they trample on what would have been considered "states rights" all the time. Whether or not that's a good idea is a separate issue, but courts have accepted the feds' involvement for a long time.

With respect to health care, I would be stunned and amazed if the Supremes, even with their somewhat conservative tendencies these days, were to overturn this legislation on the grounds that it went beyond the federal government's power. Maybe they ought to, but if they did so, there would be a lot of other things that would also have to be thrown out first.

 

[Freddy]

I stand corrected, at least partially. What I meant was that a lot of people are quite sure that the constitution must be interpreted very strictly and that unless a power is very specifically called out, Congress is acting unconstitutionally when they go beyond the strict limitations. The fact is that the federal government gets into all sorts of business that the founders would not have envisioned, and they trample on what would have been considered "states rights" all the time. Whether or not that's a good idea is a separate issue, but courts have accepted the feds' involvement for a long time.

With respect to health care, I would be stunned and amazed if the Supremes, even with their somewhat conservative tendencies these days, were to overturn this legislation on the grounds that it went beyond the federal government's power. Maybe they ought to, but if they did so, there would be a lot of other things that would also have to be thrown out first.

I know what you mean. A lot of people confuse the Constitution as actually interpreted by the Supreme Court with the Constitution as they think it should be interpreted. I think that sums up your first point pretty nicely.

As to the latter point, I think given the current make-up of the court, it wouldn't be all that surprising at all. And other things wouldn't have to be thrown out as well. The Court would simply say that not buying health insurance is what Congress is attempting to regulate, and that it is not an economic activity as contemplated by the test established in Perez v.United States. It really wouldn't be a stretch for them to do that, although it's no guarantee they would. It all depends on which side of the bed Justice Kennedy gets up on that morning. Such a holding wouldn't have a whole lot of effect as a precedent, because Congress does not often try to compel participation in interstate commerce.

 

[JoeTheJuggler]

Doh! And I skimmed Art.I sec. 8 right before I posted that.

But Congress appears to be relying on the Commerce Clause nonetheless.

You're right about that. Also the first clause (the one with the General Welfare clause in it) is usually interpreted as the power to raise taxes only for specific purposes rather than a more generic authority.

But again, to challenge the individual mandate based on the Commerce Clause would require undoing a lot of case law (and probably putting an end to Medicare--a "premium" everyone is required to pay).

____
Back to the procedural issue, it sounds like you're right about the sequence of events on reconciliation--that the bill would have to be signed into law before the Senate could pass the "fixes" using reconciliation. It sounds like that's the way it'll go, but without needing the "self executing rule" in the House. It sounds like they have (or soon will have) enough votes--again probably based on a promise from Senate Dems to pass key fixes as a compromise.

 

[JoeTheJuggler]

Also, I don't see how it wouldn't be a universal mandate. Every individual must purchase health insurance or be subject to punishment (I think only a fine, and not imprisonment, although that is strictly a matter of degree). That sounds universal to me. Are not all individuals required to buy insurance?

No. There are a number of exceptions made. You can get an exception on religious grounds or on economic hardship grounds. (I suppose that's there because there will doubtless be cases that still slip through the cracks of these programs that will attempt to make premiums affordable for everyone. I think the rule says if you can't find a plan that costs less than some percentage of your income, you are exempt.)

Also, at least in the Senate and current "reconciliation" versions, undocumented immigrants will not only not be required to buy insurance, they will be explicitly excluded from participation in any of the subsidized plans.

 

[JoeTheJuggler]

What I meant was that a lot of people are quite sure that the constitution must be interpreted very strictly and that unless a power is very specifically called out, Congress is acting unconstitutionally when they go beyond the strict limitations.

I know what you mean. A lot of people confuse the Constitution as actually interpreted by the Supreme Court with the Constitution as they think it should be interpreted. I think that sums up your first point pretty nicely.

I'm not sure if this is what you meant to say MeadMaker, but the point that's come up several times on other threads is that a law passed by Congress gets an assumption of constitutionality. (That is, it goes and remains in force from the time it becomes law unless and until a successful challenge is made in court.) The idea some people here have is that they can shift the burden of argumentation by saying, "It's not one of Congress' enumerated powers" and making the other side prove that it is. That's just not how it works.

And arguing a narrow interpretation of the Commerce Clause (a strict constructionist interpretation) will not succeed.