Health Care Law Unconstitutional

[Meadmaker]

It is possible to be uninsured and NEVER require medical care

Only if you die before it reaches you.

It is possible to be uninsured and to pay all health care costs out-of-pocket

True. Indeed a little bit of thought would show that if the average person did not purchase insurance, and instead saved that money in a savings account, the average person would have saved more money than he would need to use to purchase all of his health care.

What this overlooks, though, is that no one can ever guarantee that he will be average. Therefore, only the phenomenally wealthy can actually guarantee the ability to pay all health care costs out of pocket.




The problem with declaring government provision of health care to be unconstitutional is that it ignores certain truths about health care. Health care can literally be a matter of life or death. Health care costs can literally mean the difference between wealth and poverty. Health care provision in our modern world necessarily involves large numbers of people in a wide geographic area interacting and engaging in commercial transactions, but it is off limits to the only governmental body with sufficient reach to influence it.

 

[Grizzly Adams]

was the Second Militia Act of 1792 a federal act? or by the states?

The Second Militia Act relied on the explicitly granted power to Congress "To provide for organizing, arming, and disciplining, the Militia." Since it was left to Congress to decide how to best arm the militia, the "individual mandate" to purchase a firearm was clearly constitutional. Never before, ever, in the history of the United States, has the commerce clause been used as justification to compel the people into the stream of commerce.

 

[Grizzly Adams]

The problem with declaring government provision of health care to be unconstitutional is that it ignores certain truths about health care...

These "certain truths" don't do anything to make the law pass constitutional scrutiny. If it's unconstitutional, that's just the way it is, regardless of the ramifications of its unconstitutionality. For example, even if there were large numbers of covert Japanese operatives sabotaging US war efforts in WWII, Korematsu would still have been wrongly decided.

 

[Grizzly Adams]

many judges would consider diet choices so personal and historically so important that it should be considered a fundamental right, and unregulatable for that reason, despite the fact that it is not mentioned explicitly in the Constitution.

It's hard to make that same case for the right of non-insurance.

It's really that hard for you to imagine that an individual's choices with regard to the maintenance of his own well-being is not a "fundamental right" (assuming for the sake of argument that an arbitrary fundamental/non-fundamental distinction is a valid one)?

In general, if what you do has a real and substantive effect on me, even if that effect is an indirect one, then I think Congress has the power to regulate it. If not, or if it is the exerecise of a fundamental right, then they can't. I think your decision to go uninsured does have an effect on me, while your choice to not consume brocolli does not.

On what basis do you make that distinction? If I were to eat nothing but Ding Dongs would that not increase your health insurance rates because I'm living an extremely unhealthy lifestyle and therefore consuming more health care resources? If Ding Dong eaters, in the aggregate, were shown to have a substantial effect on the health care industry, why would it not be permitted under your interpretation of the commerce clause ("if what you do has a real and substantive effect on me, even if that effect is an indirect one, then I think Congress has the power to regulate it") to compel the consumption of, picking a food at random, broccoli?

 

[Meadmaker]

It's really that hard for you to imagine that an individual's choices with regard to the maintenance of his own well-being is not a "fundamental right" (assuming for the sake of argument that an arbitrary fundamental/non-fundamental distinction is a valid one)?

It's hard for me to imagine that requiring health insurance places a significant limit with regard to maintenance of his own well being.

On what basis do you make that distinction? If I were to eat nothing but Ding Dongs ...... to compel the consumption of, picking a food at random, broccoli?

The key is that you are, in fact, picking a food at random. You are singling out Ding Dongs and broccoli. There are many foods that could substitute for broccoli, so a law compelling broccoli consumption or forbidding Ding Dong consumption would be arbitrary. A more general law which did not impose such arbitrary restrictions, but which did reward healthy habits or penalize unhealthy ones could pass constitutional muster.

I doubt it could get through Congress, but that's different.

Of course, the hypothetical examples presented will be stark and absurd, and would stand zero chance of passing Congress anyway. However, if some law could be shown to truly affect health, and if health could truly be shown to have a measurable economic impact on me, then yes I think Commerce Clause jurisprudence would say that because your action has an effect on interstate commerce, it is within the realm of those things that Congress could, at least theoretically, regulate under the commerce clause.

Just because it falls under the realm of the commerce clause doesn't make it a constitutional law. It could still be unconstitutional for other reasons. However, if your choice can cost me money, and you don't live in the same state I live in, then your choice affects interstate commerce and it can be regulated by Congress, unless there is some other condition that makes it unconstitutional to do so. (e.g. it affects a fundamental right such as freedom of speech or the press).

 

[deepatrax]

It's hard for me to imagine that requiring health insurance places a significant limit with regard to maintenance of his own well being.




The key is that you are, in fact, picking a food at random. You are singling out Ding Dongs and broccoli. There are many foods that could substitute for broccoli, so a law compelling broccoli consumption or forbidding Ding Dong consumption would be arbitrary. A more general law which did not impose such arbitrary restrictions, but which did reward healthy habits or penalize unhealthy ones could pass constitutional muster.

I doubt it could get through Congress, but that's different.

Of course, the hypothetical examples presented will be stark and absurd, and would stand zero chance of passing Congress anyway. However, if some law could be shown to truly affect health, and if health could truly be shown to have a measurable economic impact on me, then yes I think Commerce Clause jurisprudence would say that because your action has an effect on interstate commerce, it is within the realm of those things that Congress could, at least theoretically, regulate under the commerce clause.

Just because it falls under the realm of the commerce clause doesn't make it a constitutional law. It could still be unconstitutional for other reasons. However, if your choice can cost me money, and you don't live in the same state I live in, then your choice affects interstate commerce and it can be regulated by Congress, unless there is some other condition that makes it unconstitutional to do so. (e.g. it affects a fundamental right such as freedom of speech or the press).

What's "healthy"? Ding dongs are unhealthy? If I eat 1 single ding dong per year, is that unhealthy? Water...healthy or unhealthy? If I drink 30 gallons of water in water sitting, is that healthy? Who's gonna stop me? Congress??

it's this skewed and absurd reading of two different enumerated powers (Commerce Clause and General Welfare Clause) given to Congress by the Constitution and the effort to try and link them to grant Congress almost supreme authority to control every single aspect of a person's life...that will ensure that Liberals will never be a majority in this country.

Liberals will literally tell you, "Marijuana and abortion should be legal...stay out of my personal decisions...it's my body not yours!"

which I agree with.

and then in the same breath they'll say, "You need to buy what we tell you to buy and eat what we tell you to eat!"

it's insanity...pure insanity.

 

[Rolfe]

Show me where anyone at all has said, "You need to buy what we tell you to buy and eat what we tell you to eat!"

You can't, because nobody did.

You live in a society. That society is not at all keen on abandoning people who cannot pay for the healthcare they need to suffer and die. It has therefore made some provisions for providing healthcare to such people, including compelling providers to provide expensive services to people who cannot and will not pay for what they have received.

In order to mitigate the burden such indigents impose on society in general and healthcare providers in particular, proposals are being made to ensure that individuals make provision for their future healthcare needs rather than wait until it is too late. The alternative to being compelled to make such provision (that is, to purchase appropriate insurance) is to freeload on some healthcare provider, who will then pass the costs on to others who are able to pay.

You seem to want the freedom to be a freeloader.

Rolfe.

 

[Meadmaker]

and then in the same breath they'll say, "You need to buy what we tell you to buy and eat what we tell you to eat!"

it's insanity...pure insanity.

But, depending on the exact law, it might be perfectly legal insanity. It's a good thing we have elections to stop that sort of thing if they do something very stupid.

 

[Neally]

The alternative to being compelled to make such provision (that is, to purchase appropriate insurance) is to freeload on some healthcare provider, who will then pass the costs on to others who are able to pay.

Since Obamacare provides for indigents their freeloading doesn't go away. The problem lies in the fact that not all people without insurance are freeloaders or will be freeloaders, yet they are forced to buy insurance or pay a penalty.

Judge Vinson rejected the line of argument that eventually, everyone will seek and obtain health care. And if they aren't insured, the costs will be shifted onto others, thus substantially affecting commerce. Recognizing that "not consuming" other products, such as food, is also unavoidable and can have substantial effects on other commercial markets. "There is quite literally no decision that, in the natural course of events, does not have an economic impact of some sort," he wrote. "The decisions of whether and when (or not) to buy a house, a car, a television, a dinner, or even a morning cup of coffee also have a financial impact that—when aggregated with similar economic decisions—affect the price of that particular product or service and have a substantial effect on interstate commerce."

 

[deepatrax]

Show me where anyone at all has said, "You need to buy what we tell you to buy and eat what we tell you to eat!"

You can't, because nobody did.

You live in a society. That society is not at all keen on abandoning people who cannot pay for the healthcare they need to suffer and die. It has therefore made some provisions for providing healthcare to such people, including compelling providers to provide expensive services to people who cannot and will not pay for what they have received.

In order to mitigate the burden such indigents impose on society in general and healthcare providers in particular, proposals are being made to ensure that individuals make provision for their future healthcare needs rather than wait until it is too late. The alternative to being compelled to make such provision (that is, to purchase appropriate insurance) is to freeload on some healthcare provider, who will then pass the costs on to others who are able to pay.

You seem to want the freedom to be a freeloader.

Rolfe.

It's possible to have ZERO Health Insurance and not have any health care costs passed on to someone else.

It's possible under this law to not buy any health insurance, have a penalty incurred and just not pay it, since the Obama Administration has said it wouldn't be enforced.

what say you now, Einstein??

 

[JoeTheJuggler]

It's possible to have ZERO Health Insurance and not have any health care costs passed on to someone else

No it's not.

Even if you can find this fictitious person who has never had insurance and has never received healthcare services, every person lacking minimum essential coverage runs a non-zero risk of requiring legally mandated care that they can't afford to pay. That risk is a current cost to the heatlhcare system, as I've already explained to you (perhaps on the other thread on this topic).

The healthcare system has to maintain resources and staffing to cover the uninsured. While any one person might not ever incur costs they can't pay, it's definite that the uninsured in aggregate will. (That cost is measurable and the system has to cover it.) Thus, that non-zero risk the individual runs is a cost equal to the average cost the uninsured are to the system each year.

It's possible under this law to not buy any health insurance, have a penalty incurred and just not pay it, since the Obama Administration has said it wouldn't be enforced.

And I'm sure you can provide a quote where "the Obama Administration" has said that this law won't be implemented? (Enforcement via the tax penalty by the IRS is part of the law.)

However, I would point out yet again that it's possible to satisfy the individual mandate without buying health insurance. In fact, roughly 90% of Americans already satisfy the individual mandate. Of the 30 million or so who do not, most of them will qualify for free or subsidized coverage. And no one will be required to buy insurance if it is a financial hardship (if it exceeds a given percentage of their income, though I don't off the top of my head remember the figures).

ETA: The only people who will be subject to the tax penalty will be the ones already gaming the system (this, by the way, is the economic activity Congress means to regulate by the individual mandate), and the tax penalty will help to offset the costs to the system they present. (I remind you again that the system can be described as a public/private partnership since slightly under 50% of healthcare costs are paid for with public moneys and slightly more than 50% paid for by private funds).

 

[JoeTheJuggler]

Judge Vinson rejected the line of argument that eventually, everyone will seek and obtain health care. And if they aren't insured, the costs will be shifted onto others, thus substantially affecting commerce. Recognizing that "not consuming" other products, such as food, is also unavoidable and can have substantial effects on other commercial markets. "There is quite literally no decision that, in the natural course of events, does not have an economic impact of some sort," he wrote. "The decisions of whether and when (or not) to buy a house, a car, a television, a dinner, or even a morning cup of coffee also have a financial impact that—when aggregated with similar economic decisions—affect the price of that particular product or service and have a substantial effect on interstate commerce."

And I think Vinson is flat out wrong on these points.

The uninsured do in fact present a present cost to the system (which is legally mandated to provide care and thus must spend money to be ready and able to provide that care--something all hospitals take into account when setting up their price structure for patients who do pay their fees either out of pocket or by coverage of one sort or another or both). Vinson claimed that this is piling inference on top of inference, but it really isn't.

It really is a present cost to the system, and that cost is passed on to others. I promise you, hospitals and other healthcare providers do set up their prices right now mindful of the certainty that they will incur costs that patients won't pay.

And finally, noting that almost every activity is economic activity is irrelevant. The test for the Commerce Clause authority is activity that has a significant effect on interstate commerce.

Vinson wrongly claims that being uninsured has zero effect.

Congress' Commerce Clause authority is not an unlimited power to regulate every human activity, even if it is a broader authority than some people would like and even if it isn't at all what the framers of the Constitution originally intended.

BTW, in his opinion, Vinson spent a lot of time discussing what the original intention of the Commerce Clause was--something actually irrelevant to the current case which is bound by current SCOTUS interpretation--as specified in the Constitution Article III Section 2. (That is, a district court doesn't have the authority to overturn a Supreme Court case based on its own novel argument returning to the original intent of the Commerce Clause.)

 

[JoeTheJuggler]

But, depending on the exact law, it might be perfectly legal insanity. It's a good thing we have elections to stop that sort of thing if they do something very stupid.

A very good point. Just because any given legislation might be good or bad policy doesn't argue that it is either constitutional or unconstitutional.

 

[deepatrax]

No it's not.

Even if you can find this fictitious person who has never had insurance and has never received healthcare services, every person lacking minimum essential coverage runs a non-zero risk of requiring legally mandated care that they can't afford to pay. That risk is a current cost to the heatlhcare system, as I've already explained to you (perhaps on the other thread on this topic).

I said it IS possible for someone to carry no health insurance and not have any health care costs passed on to someone else. I never said they wouldn't need medical care.

There are many wealthy people who pay all costs out-of-pocket and there are many healthy young people who also do the same.

And I'm sure you can provide a quote where "the Obama Administration" has said that this law won't be implemented? (Enforcement via the tax penalty by the IRS is part of the law.)

This is what I was basing that on..."Joint Committee on Taxation Confirms that ObamaCare Does Not Enforce Individual Mandate"

however actually, the most up to date info I just found says this: "The law prohibits the Internal Revenue Service from collecting this penalty by means of tax liens, levies, and criminal proceedings, but other traditional means of tax collection and enforcement remain in place."

interestingly, this was used by Judge Vinson in his ruling when he said that the individual mandate imposes a "penalty" and not a "tax."

However, I would point out yet again that it's possible to satisfy the individual mandate without buying health insurance. In fact, roughly 90% of Americans already satisfy the individual mandate. Of the 30 million or so who do not, most of them will qualify for free or subsidized coverage. And no one will be required to buy insurance if it is a financial hardship (if it exceeds a given percentage of their income, though I don't off the top of my head remember the figures).

free or subsidized coverage you say?

First, nothing is free. Somebody has to pay for it. The fact that someone else is forced to pay doesn't negate that it's still being forced onto someone.

let's not re-hash this out again though.

It's now 2-2 for Federal Judges...we'll just have to see how it plays out.

 

[deepatrax]

<snip>
The uninsured do in fact present a present cost to the system
<snip>

The obese also present a present cost to the system

Outlaw obesity, mandate rice cakes and broccoli, limit sedentary television and internet viewing and make it a law to report to your local gym 3 times per week!

Congress can control your entire life...cause it's gonna cost us all and we're all in this together!

 

[Grizzly Adams]

Show me where anyone at all has said, "You need to buy what we tell you to buy and eat what we tell you to eat!"

You can't, because nobody did.

Really? Because in your next breath you say...

You live in a society. That society is not at all keen on abandoning people who cannot pay for the healthcare they need to suffer and die. It has therefore made some provisions for providing healthcare to such people, including compelling providers to provide expensive services to people who cannot and will not pay for what they have received.

In order to mitigate the burden such indigents impose on society in general and healthcare providers in particular, proposals are being made to ensure that individuals make provision for their future healthcare needs rather than wait until it is too late. The alternative to being compelled to make such provision (that is, to purchase appropriate insurance) is to freeload on some healthcare provider, who will then pass the costs on to others who are able to pay.

tl;dr version: You need to buy what we tell you to buy.

So who didn't say what now?

 

[Grizzly Adams]

Vinson spent a lot of time discussing what the original intention of the Commerce Clause was--something actually irrelevant to the current case which is bound by current SCOTUS interpretation--as specified in the Constitution Article III Section 2. (That is, a district court doesn't have the authority to overturn a Supreme Court case based on its own novel argument returning to the original intent of the Commerce Clause.)

Since the individual mandate is, literally, an unprecedented and wholly novel exercise of power justified by the commerce clause, I don't see how Supreme Court precedent can exist (since, logically, an unprecedented action has no precedent...) let alone be useful in guiding a lower court's opnion.

 

[gnome]

Really? Because in your next breath you say...


tl;dr version: You need to buy what we tell you to buy.

So who didn't say what now?

Hasty generalization.

This is talking about one instance, not "whatever we tell you."

Bearing in mind "We" = the voters, basically.

There are many things the government spends our taxes on without our individual consent, as well.

If every time it needs to be justified and voted on, that's hardly "whatever we tell you."

 

[Grizzly Adams]

Hasty generalization.

No, that's what he said, when you strip away the fluff.

This is talking about one instance, not "whatever we tell you."

One instance of "you need to buy what we tell you to buy" is still "you need to buy what we tell you to buy."

Bearing in mind "We" = the voters, basically.

Uh, so?

There are many things the government spends our taxes on without our individual consent, as well.

That's our taxes. This is not.

If every time it needs to be justified and voted on, that's hardly "whatever we tell you."

So, when a law is passed that tells us to buy something, we don't actually have to follow it?

 

[JoeTheJuggler]

Never before, ever, in the history of the United States, has the commerce clause been used as justification to compel the people into the stream of commerce.

And this law doesn't require that either. It is merely the regulation of economic activity that it's impossible to opt out of.

For all the rugged individualist talk, one cannot opt out of being a cost to the healthcare system since we all (including the uninsured) run a non-zero risk of requiring care (mandated by existing federal law) that we cannot afford to pay for.

The fact that one is currently uninsured (or even the existence of a fictional person who has never had coverage and never received any healthcare services) doesn't change the fact that that risk is a current cost to the system which has to account for care provided that won't be paid for.