Health Care Law Unconstitutional

[JoeTheJuggler]

Has the amount of wealth for this exception actually been quantified?

Yes. Minimum essential coverage is defined in painstaking detail. Remember how opponents of the bill complained about it being too long?

I've already shown your three examples to be only taking into account the uninsured who can't pay...and not those uninsured who can pay and do.

quit making stuff up.

I'm not making anything up. I've shown that anyone who lacks minimum essential coverage runs the risk of requiring mandated care that they won't be able to pay for. You claim a healthy person doesn't have that risk, which is absurd.

And that risk must be accounted for by the healthcare system. That $47 billion worth of care has to be there even though the patients that received it can't or won't pay their bills. There has to be sufficient resources and staff (who get paid) to provide that care even for patients who can't pay. And those are costs presented by everyone running that risk, whether or not they ever actually require care they can't pay for.

There is no one who doesn't run that risk, no matter how healthy.

 

[deepatrax]

I don't think the constitutionality hinges on that. However, I have frequently made the point TShaitanaku makes just to point out that people are mischaracterizing the individual mandate.

It is not a mandate to buy insurance. It is a requirement to have minimum essential coverage.

The vast majority of Americans already satisfy this by having coverage provided by a group plan through their employer. Some people qualify for being over 65 and using Medicare. Some qualify for their state's version of Medicaid. A person could be wealthy enough to provide their own minimum essential coverage. Some satisfy it by being on someone else's insurance.

Congress cannot mandate something which doesn't fall under their enumerated powers...even if 99% of Americans already did it voluntarily.

The few remaining are those who are gaming the system by not paying anything in even though they can afford it. That is precisely the economic activity that Congress wishes to regulate.

What about the uninsured (healthy and wealthy) who pay out-of-pocket and pass on ZERO costs to others? And no, they are not factored into the cost as you keep claiming.

So it's really oversimplified to the point of being inaccurate to say that the individual mandate is a requirement to purchase private health insurance. In fact, under the status quo just under half of all healthcare payments are made with public money. Just over half with private money.

The constitutionality question isn't based on what you're inaccurately referring to as "exceptions". It is the currently established legal test for whether or not a law falls under the Commerce Clause. The test is whether or not the law regulates economic activity that has a significant effect on interstate commerce. (See my post number 130 for evidence that lacking minimum essential coverage does just that.)

I think you're running into a catch-22.

On the one hand you're claiming that nobody will be forced to buy anything and on the other hand you're claiming that this will lower costs...why the discrepancy? How can costs be lowered, more money be injected into the system...and yet nobody be forced to pay for something?

 

[Trakar]

Anyone who thinks Obama's healthcare plan is in any way constitutional has no understanding of the constitutional constraints upon and role of the federal government or is opposed to it and therefore favors the "living and breathing document" argument which is simply another way to get around and approve of the unconstitutional.

If anything, the states could enact such legislation, not the feds.

But the lawmaking elite class long ago left behind any true and strict adherence to the Constitution.

Anyone who thinks that the U.S. Constitution is a "graven in stone" document not subject to interpretation and evolution completely misunderstands or ignores the principles, explanations and discussions of the Founding Fathers who wrote, passed and established the document to be the nation's guiding and authorizing statute.

"... Individuals entering into society, must give up a share of liberty to preserve the rest. The magnitude of the sacrifice must depend as well on situation and circumstances, as on the object to be obtained. It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved;..."

George Washington, President By unanimous Order of the Convention. Letter from the Federal Convention President to the President of Congress, Transmitting the Constitution
September 17, 1787

http://www.constitutionfacts.com/

 

[deepatrax]

Yes. Minimum essential coverage is defined in painstaking detail. Remember how opponents of the bill complained about it being too long?




I'm not making anything up. I've shown that anyone who lacks minimum essential coverage runs the risk of requiring mandated care that they won't be able to pay for. You claim a healthy person doesn't have that risk, which is absurd.

And that risk must be accounted for by the healthcare system. That $47 billion worth of care has to be there even though the patients that received it can't or won't pay their bills. There has to be sufficient resources and staff (who get paid) to provide that care even for patients who can't pay. And those are costs presented by everyone running that risk, whether or not they ever actually require care they can't pay for.

There is no one who doesn't run that risk, no matter how healthy.

sorry, I've checked the Constitution...

nowhere does it say Congress has the power to mandate commerce now because of a future possible risk someone may or may not be later.

Is it possible to live in the U.S. uninsured and have ZERO health care costs passed on to someone else?

yes it is.

Does the Constitution grant Congress the power to mandate your action in case you might at some point pass on health care costs to someone else at some point in the future?

I think not.

 

[Trakar]

Interpreting the Constitution is not an issue of Conservative or Liberal politics. For example, the consitution does not mandate that the business fictions known as "corporations" should have the same protections granted citizens through the Constitution. The U S Supreme Court, however, has interpreted the First Amendment to permit companies protections and guarantees originally intended only for free, white male landowner citizens. While most conservative might agree with this corporate extension of application, they are unlikely to see this as "judicial interpretation" because it doesn’t conflict with their political perspective. Both major parties play the "original intention" card, but both also depend upon consititutional interpretation to support their political causes.

 

[Ziggurat]

The constitutionality question isn't based on what you're inaccurately referring to as "exceptions". It is the currently established legal test for whether or not a law falls under the Commerce Clause. The test is whether or not the law regulates economic activity that has a significant effect on interstate commerce. (See my post number 130 for evidence that lacking minimum essential coverage does just that.)

Given Gonzalez v. Raich, I'm having a hard time imagining much of anything which cannot be classified as having a significant effect on interstate commerce. So I don't think your description of the requirements for constitutionality are correct. Maybe the courts will rule that way, but if they do, I think they're wrong, and I think they will be granting far too much power to Congress in so doing. I'm sure you don't think the commerce clause allows unlimited power, but I can't see what the limit actually is under your reading.

 

[Malerin]

I already have addressed these two groups, repeatedly.

If you are wealthy enough to provide your own minimum essential coverage, then you already satisfy the individual mandate and you are not an extra cost to the system.
Anyone else that lacks minimum essential coverage (and still qualifies for the individual mandate) does have a risk of requiring care they won't be able to pay for--even if they're very healthy. (Do you know how many MVAs there are in the U.S.? Firearm injuries? Previously undiagnoses medical emergencies?) That risk is a cost to the system. It's predictable and can be calculated. So even if they never end up requiring care they can't pay for, the system has to account for that risk.

If you're wealthy enough you wouldn't buy "minimum essential coverage". You would have no coverage at all and simply pay your medical expenses when they arise. In doing so, you would be penalized for not buying something.

 

[Malerin]

Yes. Minimum essential coverage is defined in painstaking detail. Remember how opponents of the bill complained about it being too long?




I'm not making anything up. I've shown that anyone who lacks minimum essential coverage runs the risk of requiring mandated care that they won't be able to pay for. You claim a healthy person doesn't have that risk, which is absurd.

And that risk must be accounted for by the healthcare system. That $47 billion worth of care has to be there even though the patients that received it can't or won't pay their bills. There has to be sufficient resources and staff (who get paid) to provide that care even for patients who can't pay. And those are costs presented by everyone running that risk, whether or not they ever actually require care they can't pay for.

There is no one who doesn't run that risk, no matter how healthy.

Wait, what? Warren Buffet is someone. There is no risk to society that Buffet won't be able to pay for health care.

 

[quixotecoyote]

Wait, what? Warren Buffet is someone. There is no risk to society that Buffet won't be able to pay for health care.

A person could be wealthy enough to provide their own minimum essential coverage.

Your attempt at a cheap "gotcha" is disappointing.

 

[Ziggurat]

Wait, what? Warren Buffet is someone. There is no risk to society that Buffet won't be able to pay for health care.

Indeed. I knew someone who went without health insurance because he could pay out of pocket. And he did. Even when he got cancer. He ended up dying, but not because he couldn't, or didn't, pay for treatment. He could, and did, but sometimes you die anyways. It was expensive, but he paid all the bills himself. He presented no burden to taxpayers at all.

 

[Trakar]

If you're wealthy enough you wouldn't buy "minimum essential coverage". You would have no coverage at all and simply pay your medical expenses when they arise. In doing so, you would be penalized for not buying something.

Not at all, you can establish your own "insurance," through bonding or possibly even through the establishment of medical trust accounts and a number of other such "self-insurance" mechanisms. You aren't required to purchase public or private insurance, you are just required to have some form of medical coverage. Nearly a tenth of the US population consists of US military active duty or veterans, they are not required to buy coverage, their capacity to utilize the VAMC/TriCare fulfills mandate. Most of the poor are covered by enrollment in local and state indigent care/medicaid programs. The elderly and retired through combinations of private and public systems. Where is the onerous mandated action and imposition upon individual freedoms that does not reasonably nor substantively benefit individual and society? ("...It is obviously impractical in the federal government of these states, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all: Individuals entering into society, must give up a share of liberty to preserve the rest. The magnitude of the sacrifice must depend as well on situation and circumstances, as on the object to be obtained. It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved...")

 

[Neally]

Out of curiosity, when that county in Kentucky required all citizens to purchase a firearm, was that unconstitutional?

No because that was a county mandate not a federal mandate.

The government's position is that it is regulating economic activity.

And that position and justification is flat out wrong as pointed out by the 2 recent decision and will be pointed out when the SCOTUS also rules it unconstitutional.

At any rate, there are other federal laws requiring the purchase of insurance. As with the healthcare mandate, these insurance mandates are regulating economic activity.

Flood insurance laws are hardly the same as the health care mandate.

The only thing different about the healthcare mandate is that everyone participates in the healthcare system. No one can truly opt out since we all run a risk of requiring care that we wouldn't be able to pay for if we lacked minimum essential coverage and that risk is a present cost to the system (so we are all participating in this economic activity).

There is no guarantee that someone will not be able to pay a future medical bill. That is not a present cost to the system.

Why do you ignore the fact that unless you have minimum essential coverage, you run the risk of requiring care that you won't be able to pay for and that the system has to account for that risk.

Why do you ignore the fact that some uninsured people will never not pay for all their medical care and never be a burden on the system?

So even a rugged individualist (who doesn't have a large enough pot of money to provide his own minimum essential coverage and has no other coverage) who pays for services rendered still runs a risk of requiring healthcare services that cannot be refused which he cannot afford to pay for. That risk is a present cost to the system, and the system has to account for it, even if that given single individual never requires treatment he can't afford to pay for.

Your economic analysis is flat out wrong. The fact that a person lives their whole life without insurance and pays all their medical expenses is not a cost to the system.

Here's an article that describes a study that shows the cost the uninsured are to the system (and calculates the average portion of the premiums paid by the insured that cover that cost).

http://www.americanprogressaction.org/issues/2009/03/cost_shift.html

Here's another report:
http://www.kff.org/uninsured/upload...uld-Full-Coverage-Add-to-Medical-Spending.pdf
Among other things, this one shows that 1/3 of the medical care provided to the uninsured goes unpaid.

Here's another:

http://www.usatoday.com/money/industries/insurance/2009-05-28-hiddentax_N.htm
This one says that in 2008 the cost of the uninsured to the system was $42.7 billion.

This information is easy to find and clearly refutes the idea that being uninsured is opting out of the system and doesn't present a cost to the system that must be accounted for.

All these reports say is that if you don't pay your bill, the cost is passed on to others. Just like in every industry on earth. Every business suffers credit loss. Their prices reflect those losses. The fact that most customers pay their bills is not a burden or cost to the system.

I don't think the constitutionality hinges on that. However, I have frequently made the point TShaitanaku makes just to point out that people are mischaracterizing the individual mandate.

It is not a mandate to buy insurance. It is a requirement to have minimum essential coverage.

The few remaining are those who are gaming the system by not paying anything in even though they can afford it. That is precisely the economic activity that Congress wishes to regulate.

My guess is that if they can afford it but not paying, they are willing to accept the risk that the insurance companies are taking, namely that their health care costs will not exceed the amounts paid in premiums. They are not "gaming" the system since most will in fact pay all their own health care costs.

So it's really oversimplified to the point of being inaccurate to say that the individual mandate is a requirement to purchase private health insurance.

What's inaccurate is claiming that the mandate isn't a requirement to purchase insurance. Some people will be forced to buy insurance or pay a penalty.

 

[JoeTheJuggler]

And that position and justification is flat out wrong as pointed out by the 2 recent decision and will be pointed out when the SCOTUS also rules it unconstitutional.

Don't hold your breath. And again, Hudson's and Vinson's opinions are not compatible with one another.

Flood insurance laws are hardly the same as the health care mandate.

Except insofar as they are both federal insurance mandates.

http://www.syracuse.com/news/index.ssf/2010/07/house_passes_flood_bill_that_g.html

There is no guarantee that someone will not be able to pay a future medical bill. That is not a present cost to the system.

Sure there is. Every hospital and doctor has to budget for the amount of care they will provide for which they will receive no payment. Some states actually budget money to pay hospitals some of this cost. In aggregate, we know these costs will happen every year.

Why do you ignore the fact that some uninsured people will never not pay for all their medical care and never be a burden on the system?

I don't ignore that. In fact, I think you'll find I've said things like, "their non-zero risk is a present cost to the system even if a specific individual never incurs costs they cannot pay for".

And in fact, the way most people who are gaming the system do it is when they become a higher risk, they start buying insurance.

Your economic analysis is flat out wrong. The fact that a person lives their whole life without insurance and pays all their medical expenses is not a cost to the system.

You just made an assertion without refuting my "economic analysis". Again, hospitals and doctors do make their budgets knowing without a doubt that they will provide care for which they will receive no compensation. The only way that cost would not exist would be if there weren't people who ran a risk of requiring care that they won't be able to pay for.

All these reports say is that if you don't pay your bill, the cost is passed on to others. Just like in every industry on earth. Every business suffers credit loss. Their prices reflect those losses. The fact that most customers pay their bills is not a burden or cost to the system.

How many other industries are mandated to provide goods and services regardless of the customer's ability to pay?

My guess is that if they can afford it but not paying, they are willing to accept the risk that the insurance companies are taking, namely that their health care costs will not exceed the amounts paid in premiums. They are not "gaming" the system since most will in fact pay all their own health care costs.

But the risk is passed on to the system since there are laws requiring hospitals to provide stabilizing care regardless of the patient's ability to pay. They are "socializing" their risk without paying their fair share.

What's inaccurate is claiming that the mandate isn't a requirement to purchase insurance. Some people will be forced to buy insurance or pay a penalty.

Again, you're just asserting a contrary position without addressing the arguments I've made. The intent and language of the law is not about requiring a purchase. The vast majority of Americans will satisfy the mandate without making a purchase. Some people will only be able to satisfy the mandate by purchasing insurance or paying a tax penalty (which carries with it no criminal conviction--it's really a tax).

But again, even if it were strictly an insurance mandate, there is nothing novel about that.

The only thing that is novel is the fact that no one can opt out of the public/private U.S. healthcare system.

 

[JoeTheJuggler]

nowhere does it say Congress has the power to mandate commerce now because of a future possible risk someone may or may not be later.

I'm sure you willfully mischaracterizing the constitutional basis for the mandate. I'll spell it out again.

It is the regulation of economic activity that has a significant effect on interstate commerce. The effect of the uninsured in aggregate on the healthcare system is something like $47 billion (probably over $50 billion by now). That is significant, therefore it is economic activity that falls within the Congress' Commerce Clause authority.

It is NOT mandating "commerce now because of a future possible risk someone may or may not be later". In fact, every who lacks minimum essential coverage has a current risk that they will require care they cannot afford to pay. It's not a future possible risk. It's an actual risk that is a current cost to the system.

You can keep arguing against the straw man position that the individual mandate is about regulating future risks or people who don't pass on costs while ignoring the fact that everyone who has a risk of requiring expensive care they can't afford to pay is a current risk to the public/private healthcare system that has to be accounted for each year (that is, before we know which of the uninsured will get treatment they can't afford to pay).

Again, people who are gaming the system are socializing their risk while claiming to be rugged individualists who are paying their own way. They pay their own way until they require expensive care they can't afford to pay or until they decide to migrate back into the ranks of the insured.

This is economic activity that costs the system billions each year and which Congress has the authority to regulate.

 

[JoeTheJuggler]

sorry, I've checked the Constitution...

Read Article III Section 2 and then tell me whether or not you've read enough case law to dispute my characterization of the current interpretation of the Commerce Clause (that is, Congress has the authority to regulate economic activity that has a significant effect on interstate commerce).

Then tell me exactly why you think activity that costs the public/private U.S. healthcare system tens of billions of dollars a year isn't economic activity that has a significant effect on interstate commerce?

You needn't repeat statements you've made over and over again (that some people who lack minimum essential coverage never end up requiring care that they can't afford to pay for). I've already shown you that this cost is real, and predictable in aggregate and must be accounted for. The fact that we can't say which individuals in this group will require care they can't afford doesn't matter. (Again, the case law says you answer the question of whether this is economic activity that significantly affects interstate commerce in aggregate.) It is activity that has $47 billion dollar per year impact on interstate commerce.

 

[Malerin]

Not at all, you can establish your own "insurance," through bonding or possibly even through the establishment of medical trust accounts and a number of other such "self-insurance" mechanisms. You aren't required to purchase public or private insurance, you are just required to have some form of medical coverage. Nearly a tenth of the US population consists of US military active duty or veterans, they are not required to buy coverage, their capacity to utilize the VAMC/TriCare fulfills mandate. Most of the poor are covered by enrollment in local and state indigent care/medicaid programs. The elderly and retired through combinations of private and public systems. Where is the onerous mandated action and imposition upon individual freedoms that does not reasonably nor substantively benefit individual and society? ("...It is obviously impractical in the federal government of these states, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all: Individuals entering into society, must give up a share of liberty to preserve the rest. The magnitude of the sacrifice must depend as well on situation and circumstances, as on the object to be obtained. It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved...")

Are you sure the mandate let's you self-insure? How much are you required to set aside? Can I self-insure against the expense of a cold and avoid the mandate?

 

[JoeTheJuggler]

Wait, what? Warren Buffet is someone. There is no risk to society that Buffet won't be able to pay for health care.

I've addressed this several times. You could provide your own minimum essential coverage by having a large pot of money. (Most wealthy people find it more reasonable to buy insurance, though.)

Again, the intent and wording of the law is not about enriching private insurance companies. (In fact the law also effectively limits their profits by requiring that they spend a specified percentage of the premiums they collect paying for healthcare.) It is a requirement to have minimum essential coverage. The law doesn't care how you get that coverage (that is, it doesn't require you to get it in any particular way), just that you maintain it month to month.

 

[JoeTheJuggler]

Are you sure the mandate let's [sic] you self-insure? How much are you required to set aside? Can I self-insure against the expense of a cold and avoid the mandate?

Minimum essential coverage is spelled out in some detail in the law. I don't think it's practical, even if you were wealthy enough, to self-insure, but it certainly doesn't forbid it.

You could also own your own private insurance company and insure yourself for no premium (as a benefit of employment, for example).

You could also get your coverage for free because your employer (which may or may not be in the insurance industry) provides it to you. (This is how members of Congress would satisfy the individual mandate. None of them have to buy private insurance.)

And remember very nearly half of all healthcare expenditures are made with public money (Medicare mostly). Everyone on Medicare satisfies the mandate without buying insurance. So the law is not about requiring the purchase of insurance. It is a mandate to have coverage. For some people who can afford it, it will require them to purchase insurance. For many who now can't, the law will provide fully or partially subsidized options, and for the few that fall through the cracks (whose only options are private insurance plans that cost more than a certain percentage of their income), the law grants a financial hardship exemption.

ETA: Short answer to your question: the law doesn't say you can't provide your own minimum essential coverage. Remember, it doesn't say you have to buy insurance. And, no, covering the cost of treating a cold wouldn't come near the mandated minimum essential coverage.

Insurance companies don't create any magic ability to provide coverage. They just pool enough money collected from premiums to pay out claims. I have no idea what minimum amount of money they have to have to do this. But there's no reason an individual wealthy person couldn't do the same thing for himself.

 

[JoeTheJuggler]

Given Gonzalez v. Raich, I'm having a hard time imagining much of anything which cannot be classified as having a significant effect on interstate commerce. So I don't think your description of the requirements for constitutionality are correct.

Both Hudson and Vinson acknowledged that this is the test for seeing whether or not the law falls within the Commerce Clause authority.

 

[Neally]

Every hospital and doctor has to budget for the amount of care they will provide for which they will receive no payment. Some states actually budget money to pay hospitals some of this cost. In aggregate, we know these costs will happen every year.

Every business does the same. The people that pay their bills are not a cost to the system.

And in fact, the way most people who are gaming the system do it is when they become a higher risk, they start buying insurance.

That's not gaming the system if they've paid all their own medical bills to that point. The older/sicker you are, the more your medical costs will likely be and that is factored into the higher premiums you'll pay.

You just made an assertion without refuting my "economic analysis". Again, hospitals and doctors do make their budgets knowing without a doubt that they will provide care for which they will receive no compensation. The only way that cost would not exist would be if there weren't people who ran a risk of requiring care that they won't be able to pay for.

The refutation is not that medical or any other cost are higher due to non-payers, it is that people that do fully pay are somehow a cost to the system. This is flat out wrong.

How many other industries are mandated to provide goods and services regardless of the customer's ability to pay?

Irrelevant to the point that the people that pay are somehow a cost to the system.

But the risk is passed on to the system since there are laws requiring hospitals to provide stabilizing care regardless of the patient's ability to pay. They are "socializing" their risk without paying their fair share.

If they pay their own way there is no cost to society.

It is NOT mandating "commerce now because of a future possible risk someone may or may not be later". In fact, every who lacks minimum essential coverage has a current risk that they will require care they cannot afford to pay. It's not a future possible risk. It's an actual risk that is a current cost to the system.

A current risk is not a cost. This is where your financial analysis fails. It becomes a cost if they don't pay. This is why it's unfair and unconstitutional to regulate a non-activity.

This is economic activity that costs the system billions each year and which Congress has the authority to regulate.

Not everyone without insurance is a cost to the system, therefore congress has no right to demand that everyone pay a penalty if they don't have insurance.