The Constitutionality of Mandatory Healthcare
by Blake on Sep 19, 2009 at 13:15 Political
I had a call from a friend of mine yesterday- he knows I blog online, and he called me spittin’ mad because he had just heard that the Healthcare plan(s) all have a mandatory aspect to them- it was Hussein’s only way to get the Insurance companies onboard, to mandate millions more people to be required to carry health insurance. The insurance companies like the fact that more people would be required to sign up, because that increases their customer base- they are too stupid to realize when they are being jacked around by Hussein and Co.
And jacked around they will be- because there will be, if ANY of this passes, a single payer option, sooner or later- and because in the end, it will have to play out in the courts as to the Constitutionality of this issue. I have yet to find where it says ANYTHING in the Constitution about government- required healthcare. Did they have it way back then? Or did they have something called- Gasp!- Personal Responsibility?
Federal legislation requiring that every American have health insurance is part of all the major health-care reform plans now being considered in Washington. Such a mandate, however, would expand the federal government’s authority over individual Americans to an unprecedented degree. It is also profoundly unconstitutional.
An individual mandate has been a hardy perennial of health-care reform proposals since HillaryCare in the early 1990s. President Barack Obama defended its merits before Congress last week, claiming that uninsured people still use medical services and impose the costs on everyone else. But the reality is far different. Certainly some uninsured use emergency rooms in lieu of primary care physicians, but the majority are young people who forgo insurance precisely because they do not expect to need much medical care. When they do, these uninsured pay full freight, often at premium rates, thereby actually subsidizing insured Americans.
online.wsj.com
Even when people do not pay “full freight”, and get a discount, as I do, because I pay cash, I get that discount because the Doctor’s office does not have to go through the time- consuming paperwork necessary to insurance companies. Is anyone ignorant enough to believe that the paperwork would decrease under a government mandate? Of course not- you’d have to be an utter fool to believe that. Still, there are some people who think this “requirement” would be a good thing. Not so at all.
The mandate’s real justifications are far more cynical and political. Making healthy young adults pay billions of dollars in premiums into the national health-care market is the only way to fund universal coverage without raising substantial new taxes. In effect, this mandate would be one more giant, cross-generational subsidy—imposed on generations who are already stuck with the bill for the federal government’s prior spending sprees.
Politically, of course, the mandate is essential to winning insurance industry support for the legislation and acceptance of heavy federal regulations. Millions of new customers will be driven into insurance-company arms. Moreover, without the mandate, the entire thrust of the new regulatory scheme—requiring insurance companies to cover pre-existing conditions and to accept standardized premiums—would produce dysfunctional consequences. It would make little sense for anyone, young or old, to buy insurance before he actually got sick. Such a socialization of costs also happens to be an essential step toward the single payer, national health system, still stridently supported by large parts of the president’s base.
online.wsj.com
Well said, and should be memorized by all the members of Congress who are going to vote on this (these? those?) bill, whenever it is put into coherent form- God knows that is not the case now. Now, they face the wall of the Constitution, and it is there for a reason such as this.
The elephant in the room is the Constitution. As every civics class once taught, the federal government is a government of limited, enumerated powers, with the states retaining broad regulatory authority. As James Madison explained in the Federalist Papers: “[I]n the first place it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects.” Congress, in other words, cannot regulate simply because it sees a problem to be fixed. Federal law must be grounded in one of the specific grants of authority found in the Constitution.
These are mostly found in Article I, Section 8, which among other things gives Congress the power to tax, borrow and spend money, raise and support armies, declare war, establish post offices and regulate commerce. It is the authority to regulate foreign and interstate commerce that—in one way or another—supports most of the elaborate federal regulatory system. If the federal government has any right to reform, revise or remake the American health-care system, it must be found in this all-important provision. This is especially true of any mandate that every American obtain health-care insurance or face a penalty.
But there are important limits. In United States v. Lopez (1995), for example, the Court invalidated the Gun Free School Zones Act because that law made it a crime simply to possess a gun near a school. It did not “regulate any economic activity and did not contain any requirement that the possession of a gun have any connection to past interstate activity or a predictable impact on future commercial activity.” Of course, a health-care mandate would not regulate any “activity,” such as employment or growing pot in the bathroom, at all. Simply being an American would trigger it.
Health-care backers understand this and—like Lewis Carroll’s Red Queen insisting that some hills are valleys—have framed the mandate as a “tax” rather than a regulation. Under Sen. Max Baucus’s (D., Mont.) most recent plan, people who do not maintain health insurance for themselves and their families would be forced to pay an “excise tax” of up to $1,500 per year—roughly comparable to the cost of insurance coverage under the new plan.
online.wsj.com
This is how people like these socialists have been subverting the Constitution for years- by semantics. You can’t call it one thing and be legal, well OK then, we’ll just call it something else that skirts the legality. You just have to applaud how hard they work at being dishonest, don’t you?
But Congress cannot so simply avoid the constitutional limits on its power. Taxation can favor one industry or course of action over another, but a “tax” that falls exclusively on anyone who is uninsured is a penalty beyond Congress’s authority. If the rule were otherwise, Congress could evade all constitutional limits by “taxing” anyone who doesn’t follow an order of any kind—whether to obtain health-care insurance, or to join a health club, or exercise regularly, or even eat your vegetables. [emphasis mine]
This type of congressional trickery is bad for our democracy and has implications far beyond the health-care debate. The Constitution’s Framers divided power between the federal government and states—just as they did among the three federal branches of government—for a reason. They viewed these structural limitations on governmental power as the most reliable means of protecting individual liberty—more important even than the Bill of Rights.
online.wsj.com
One last thing- the Constitution has lasted longer than many documents because our founding fathers took their time and brainpower to get it right- and while I am sure the debate was heated at times, everyone there knew that this was too important to allow partisan, petty politics to rule the day. Now should be another occasion as important a that one- if we, as a people, truly want healthcare reform, we are ALL going to have to forego the power games we have been playing. This plan, whatever comes out of committee, should adhere to the rules and boundaries of the Constitution, because if not, we could see so many court cases that it literally clogs the system.
And that would be bad for everyone, but particularly for reformers, the progressives- for the Supreme Court has not been kind to cases such as this-
Yet if that imperative is insufficient to prompt reconsideration of the mandate (and the approach to reform it supports), then the inevitable judicial challenges should. Since the 1930s, the Supreme Court has been reluctant to invalidate “regulatory” taxes. However, a tax that is so clearly a penalty for failing to comply with requirements otherwise beyond Congress’s constitutional power will present the question whether there are any limits on Congress’s power to regulate individual Americans. The Supreme Court has never accepted such a proposition, and it is unlikely to accept it now, even in an area as important as health care.
online.wsj.com
We can just stop this debate altogether, or the progressives can try to cram what they will down the throats of America, or we can scrap what we know won’t work, and try for a true compromise- it is really up to the Resident and his band of cronies, because the rest of us are just waiting to see the final form, and if it isn’t what we can see is good for our country, we will reject it- you will not believe how decisively we can reject it, but go ahead-
Make My Day.
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Tags: checks and balances, constitution, personal responsibility, supreme court
BLK: “Or did they have something called- Gasp!- Personal Responsibility?”
DAR
Having insurance and paying for your risk is “personal responsibility.”
Is requiring car insurance “unconstitutional” in your view?
D.
—————-
“Everyone in Japan is required to sign up with a health insurance plan. This is a “personal mandate,”…. Every nation that relies on health insurance has that requirement (except the USA), and in Japan the mandate is not controversial at all. “It’s considered an element of personal responsibility, that you insure yourself against health care costs,” Dr. Ikegami told me. “And who can be against personal responsibility?”
–The Healing of America, pg. 87
I am curious how you define, “provide for the common defense and general welfare of the United States” in Article 1, Section 8.1 of the U.S. Constitution. Citizens access to affordable health care seems to me to contribute greatly to the general welfare of the United States.
Gee, you could cram all kinds of vague crap in there, using the ambiguous wording- the fact is there is nothing explicit in the Constitution regarding that. That is the one article where you could do that- interpret it that way- but as I have posted, the justices are reluctant to do so.
You could cram all kinds of vague crap in there, but health insurance seems pretty straight forward as a form of commerce that would fall under this section of the constitution. I had to go and read up on this United States v. Lopez issue, and it seems that it really isn’t a good reference at all for claiming that health insurance wouldn’t be covered under the commerce clause of the U.S. Constitution, since all the Gun Free School Zones act of 1990 regulated was the possession of firearms, and it was decided by the Supreme Court that this had little to do with commerce. Health insurance though, and it’s availability to consumers meets the very definition of commerce.
Interesting side note, and I really don’t want to go off on a tangent here, but the Gun Free School Zones act of 1990 was a bi-partisan bill that was a form of gun control. It was signed into law by a Republican POTUS. It was introduced by a Democrat and co-sponsored by a Republican. Heh, it’s true you learn something new everyday.
The problem is that since you cannot now buy insurance across state lines, the commerce clause is moot, and unenforceable, and neither the insurance companies nor the administration want the interstate sales of insurance, because then true competition could ensue, with cheaper prices, so they are damned by their own prejudices, and the part of the Constitution I refer to does not apply in this instance, which is why I am confident the SC would rule against them.
I’m still waiting to see how that shapes up in whatever bill is finally introduced. A public option would have to be available to all the states, so I am curious as to how that would change the regulation of private insurance across state lines. That would be part of a REAL debate though. Unfortunately, we are bogged down in BS about government funded abortions and government death panels. We need to move past that first, and shame on those who are wasting everyone’s time on those non issues.
Actually, these are real problems that have unfortunately been rendered into sound bites- the “Death Panels” would be nothing more or less than a board, or bureaucratic functionary tasked with determining your relative “worth” to the state, under a single payer system. Dr. Zeke Emanuel even has a chart showing that one eighteen year old is worth five seventy- two year olds- but if one of those old people is your mom, how are you supposed to feel if they deny her treatment? It’s NOT a panel- it is a bureaucrat.
And as far as abortions and illegal care, it would, under the language they have now in the bill(s), be unconstitutional to deny them care- you know the ACLU is just dying to jump into this-
Of course, your worth would be determined by your ability to add to the tax rolls- useless old people are just SUCH a drag, and compassion should not enter the equation.
Wait a minute- I thought we were all about the compassion, but according to Dr. Emanuel, not so much- or according to Cass Sunstein, the regulatory Czar, who wold write the regs for this.
You don’t have to spell out the BS for me. I know it for what it is.
Randy, if you know it for what it is, why do you ask?
But as I said: See Blake run.
Also, do keep in mind re: the Gun Free School Zones act was of course inspired by Columbine and other school shootings by little bratty snots- I find it rather funny in a tragic way that most of this trouble we have in schools are since we got soft and corporal punishment was banned, or at least looked down on as a form of punishment.
Columbine and other shootings were a direct result of pampering our kids, giving them a trophy just for showing up, and telling them (ad nauseum ) that there was no one better.
I have news for many parents- you are the only ones who think your kids are (pick one: cute, smart, the best thing since sliced bread)- everyone else has another opinion- some of them remarkably similar to why tigers eat their young.
The Gun Free School Zones act of 1990 was enacted in: 1990. That was years before Columbine, Pearl Mississippi, and Paducah Kentucky.
Ok so they were proactive in that regard- the Brady bill would have inspired that.
What I find strange, is that when I went to high school, I had a pickup, as many others did- and there was a shotgun and a rifle in the gunrack, as many others were, and no one was shot.
Why do you think that was, Randy? Just CHANCE/
Or perhaps we just had better morals back then?
I also went to a high school, funny enough, in Paducah KY. When I went, it was perfectly acceptable for people to have gun racks with guns in them in the parking lot at the school. Some years after I graduated, a student went and shot a bunch of other students at a school in the same district. He killed three and severely injured a few others. I don’t think that was because it became unacceptable for teachers to beat our kids.
Not just teachers, but parents also- Dr. Spock ruined our children- and we, the parents are to blame.
Classic strict father model conservative framing of the issue. Spank those kids so they don’t shoot up the school someday! Right. And you base this theory on what?
From “School Shooting Fatalities and School
Corporal Punishment: A Look at the States” by Doreen Arcus, Department of Psychology, University of Massachusetts Lowell, Lowell, Massachusetts:
But then again, why let actual research get in the way of your gut instinct?
Well Gee, Adam- Perhaps on my upbringing, and that of those in my less spoiled generation- find me the history and timeline of the first school shootings, or even mass “misbehaving” and I will guarantee that they did not happen until Dr. Spock instituted “time outs” and verbal scoldings for corporal punishment.
The purpose of being a parent was just that- to parent- not to be your kid’s new “best friend”.
We got away from the fact that punishment is supposed to, well, PUNISH. Not in a sadistic way, but in a way that is firm but unyielding.
You break the law, you get punished- period.
And research done by liberals, (ESPECIALLY as it relates to human actions) is useless, as many of them were raised wrong- and are spoiled kids who, while they didn’t shoot up the schools, have willfully perpetuated the wrong- headed myth of a time out- they are also the parents who are more likely to be snotty when you have to explain why their kids are more like the Menendez kids than the little angels they think them to be.
Notice how Blake is once again the expert in his opinion. He can’t quite grasp the idea of supporting his opinion with actual facts from credible experts other than himself so he has to use himself as the sole source.
This is OK of course when it comes to some things. It’s just that Blake isn’t a very credible source when it comes to refuting work from PhD child psychologists doing peer reviewed research. They did research looking at the available data. Blake? Well, he knows better than to check data to verify something he knows in his gut.
I base my opinion on my experiences and the experiences of those of my generation- we did not kill others in schools- we all had knives, and we had guns (because where I come from, you hunt), but we had far less spoiled kids than we have now.
This is direct observation, and yes, in many cases it does trump so- called “experts” who are so clinical in their approach that they may never actually see or interact with their “subjects”- how dumb is that?
These so called “experts” are theoretical- they are not practical, so their opinion is worse than useless- it’s dangerous.
See Blake. See Blake give opinion without evidence. See Blake see evidence counter to his opinion. See Blake run.
Not sure how I “countered” my opinion- please explain.
Aaahhh- don’t you just love those ad hominem attacks? The one aspect of debate liberals excel at- personal attack.
And adam has the gall to say I have no facts-
Ad hominem, huh? I’d love to see my ad hominem attack outlined.
I’ve got gall to say you have no facts? Are you kidding me? Point to one single fact you’ve presented. Oh, what? Your opinion that Dr. Spock is an idiot and a PhD children’s psychologist is no expert in children? That not spanking kids is what causes bratty spoiled kids who commit violent acts? Is there a fact in there somewhere? Anywhere?
Get real. You have no facts to back up your completely bogus opinion and when presented with actual evidence counter to your view you run and hide and accuse me of ad hominem. Right. Makes total sense to me…
OK- one last time for all those liberals out there who cannot read I will type slowly- There were no, I repeat no, I repeat yet again NO attacks on schools, (other than the attack at UT, because Charles Whitman had a brain tumor) by people of my generaTION, WHO WERE THE GENERATION before DR. BENJAMIN SPOCK came out with his book on how to raise a child, wherein he advocated for a gentler, less “corporal punishment” way of disciplining your child.
Ever since then, we have been plagued by children who are spoiled, think the world revolves around them, and they deserve a place at the table just for being cute- What BS- and if you are one of these kids, it is no wonder you are a part of the “Entitled” party.
Facts are that there were no shootings, then there were a whole spate of them- the defining line? The publication of Spock’s book relative to these spoiled brats’ upbringing.
Now- do I have to find a graph to show poor little Adam, who doesn’t want to believe this? No- why should I do his homework for him- I LIVED during that period- I do not need convincing, and any graph I found would be dismissed by him as “irrelevant” or some such -no, like most people, he will only be truly convinced by looking this up himself, so you go, boy-
and this is the last I will say on this subject.
Classic Post hoc ergo propter hoc fallacy. Since there were no school shootings before the book and school shootings now then it MUST BE THE BOOK! Right. Notice again the lack of anything to back up his opinion. He can type for sure, but he can’t form a logical argument. But then again since when has Blake cared about logic?
Darrell, this is NOT JAPAN!
Let me check my atlas.
Hey, you’re right!
Sarcasm is not your strong suit- stick with the goats-
The old “I fail to see [subject of opposition] ANYWHERE in the Constitution” card is overplayed anyway.
Let’s try it out…
I have yet to find where it says ANYTHING in the Constitution about Miranda Rights. Did they have it way back then? Or did they have something called- Gasp!- Personal Responsibility?
See there, works every time.
I completely ignored how our government works to interpret our constitution and I make it seem so simple and clear that a person shouldn’t need to be informed of their rights, they should take responsibility to know them before hand…
You completely ignored the constitution in order to interpret how you want the government to work, you mean, and yes- ignorance is no excuse.
Let’s just throw out the Supreme Court. The US Constitution can just stand as is. It’s clear enough, right? If it doesn’t mention “health care” then the FED can’t do anything about it and it must be left up to the states…
That should be correct in as much as the states know better than the feds what kind of healthcare their own citizens need, and since the power to force healthcare is not enumerated in the Constitution, this is an overreach of executive power abuse, and probably would be overturned by the Supreme Court.
Forcing people onto healthcare is, as I said, the ONLY way insurance companies could be onboard. forcing people onto their plans, widening their risk pool- it’s the only way you could get rid of “pre- existing ” conditions.
The Constitution was deliberately sparse in it’s enumeration of powers, because a government with more powers means a government with LESS freedoms.
A government’s natural tendency is to grow, and freedom’s to shrink, and this is a tendency we have to fight, or we wake up one day with no freedoms, just serfdom to the state- I really doi not think even you or Darrel would like that- even in your fantasies, I would wager you would like the freedom to chart your course in life.
In order to do this, sometimes we must champion freedoms we might not feel are right- such as flag- burning being a part of free speech- but we do champion these things because they ARE part and parcel of the freedoms we cherish- and to shut down one aspect of this is to effectively leave open the possibility that the coin, so to speak, one day might flip- shutting off free speech, much as Cass Sunstein advocates- and I do not say that cavalierly, just to get a reaction from you- he actually does believe that free speech should be abridged- not a good thing. Today, it might be my free speech that is silenced- tomorrow it might be yours.
The Constitution is supposed to be the Guard at the Gates- a stumbling block to those who would attempt to usurp power from we, the people, and we should in no way try to weaken this function of the Constitution.
That was why the bar is so high on amending the Constitution- the people, in a solid majority, must decide, first in their states, then the country as a whole, that the law we want changed will clearly benefit we the people.
This is why politicians from BOTH sides of the aisle, both parties, have been making end runs around the intent of the Constitution by semantical laws- can’t call it a regulation? Hell, call it an “excise or penalty tax”.
The upshot is yes, the states should decide about healthcare, not the feds- Texas has tort reform- the rest of the states should also. It truly does help- I am self pay, and I get a discount at most doctor’s offices, because they do not have to mess with insurance forms.
For people on insurance, an office visit is about $145.00- for me, $65.00- big difference.
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