The Search for the Limiting Principle


One of the key arguments in the health care reform case is whether the individual mandate to buy health insurance has a “limiting principle” — that is, if the government has that power, can’t it also force you to buy almost anything else? And this argument isn’t necessarily without merit, but as Akhil Reed Amar — in my opinion, one of the most brilliant legal scholars in the country — points out, this is true of nearly every other government power as well.

EK: In terms of liberty, I think what Barnett and other opponents of the mandate are arguing is that this is a slippery slope. First you’re saying I have to buy health insurance. Then you’re saying I have to eat broccoli.

ARA: The most important limit, the one we fought the Revolutionary War for, is that the people doing this to you are the people you elect. That’s the main check. The broccoli argument is like something they said when we were debating the income tax: If they can tax me, they can tax me at 100 percent! And yes, they can. But they won’t. Because you could vote them out of office. They have the power to do all sorts of ridiculous things that they won’t do because you’d vote them out of office. If they can prevent me from growing pot, can they prevent me from buying broccoli? Perhaps, but why would they if they want to be reelected? So if you ask me what the limits are, I’d say read McCulloch vs. Maryland. And reread it. And keep reading it till you understand it. The Constitution is a practical document,. it’s designed to work. And the powers are designed to be flexible in order to achieve the aims of the document.

The analogy of the power to tax is an excellent one. The fact that an exercise of government power could theoretically include some draconian policies does not mean that the government shouldn’t have that power at all. The Constitution gives Congress the power to regulate interstate commerce; one could come up with all kinds of crazy things they might do within the scope of that power, but that doesn’t mean they shouldn’t have the power in the first place.

The limits of the interstate power clause are a serious question, one that could potentially affect all kinds of policy questions. Let’s take two of the most prominent cases in history, Wickard v Filburn and Raich v Gonzales. In Wickard, the court ruled that the government could tell a farmer how much wheat he could grow because, even if that wheat is used solely for personal use, it has an effect on interstate commerce because it affects the amount of wheat the farmer might have to buy on the open market.

In Raich, the court ruled that federal anti-drug laws took precedence over California’s medical marijuana laws because Congress has the power to regulate interstate commerce — even though, under that law, the marijuana is neither interstate nor commerce, and again because of this idea that even marijuana grown for personal use allows one to not participate in potential interstate commerce.

I think both of those cases were wrongly decided. But the health insurance market doesn’t merely have an indirect effect on interstate commerce, it is interstate commerce. The insurance companies do business in all states and the insurance is used in multiple states, as when someone travels out of their own state and gets sick and must go to a doctor in another. So the regulation of that market, it seems to me, falls pretty clearly within the interstate commerce authority granted to Congress. And because the individual mandate is enforced solely through the tax code, it seems to clearly fall within Congress’ power to tax as well, both of which are explicitly spelled out in Article 1.

Comments

  1. jamessweet says

    Right, the question is whether this is a power which the constitution explicitly limits because of the potential for abuse. Like establishment of religion.

    Although some might make an argument regarding Due Process, I am of the opinion that the Constitution does not bar congress from establishing a “state hair color” and forcing everyone to dye their hair brown (in order to avoid an Equal Protection challenge, brunettes would not be exempt from the dye even though their hair arguable didn’t need it). However, it does bar congress from establishing a state religion. The reason the constitution bars one and not the other — even though both laws would be equally wrong — is because the former is not a real threat, while the latter is.

    I’m finding myself think this one is a closer call than I had original judged. Certainly I think the country would be worse off if the mandate is struck down, but I am less sure about the letter of the law here. I guess it depends on our interpretation of what the purpose is of preventing the federal government from regulating intra-state commerce in a modern context.

  2. says

    The income tax case is perhaps not the perfect analogy, as the Constitution had to be amended to allow it. There’s no chance an amendment allowing health care reform would ever pass, sadly.

  3. grendelsfather says

    Making you buy insurance so that you cannot force others to pay for your own health care is a trivial intrusion of government compared to their ability to compel you to serve in the military and die in pointless wars. Or even wars that do have a point – remember those?

  4. jimmiraybob says

    “limiting principle”

    Here’s a limiting principle for ya, when the unregulated hand of the free market and those at the highest levels of private power and wealth directing that hand stop disadvantaging and disenfranchising the less powerful and less fortunate, the government will limit its attempts to protect its citizens by helping to assure a fairer and more stable platform (e.g., advancing and guarding the general welfare of the nation).

    Call it the Unnecessary Principle. Or, the When Pigs Fly Principle if you’re the more skeptical sort.

  5. eric says

    The most important limit, the one we fought the Revolutionary War for, is that the people doing this to you are the people you elect. That’s the main check. The broccoli argument is like something they said when we were debating the income tax: If they can tax me, they can tax me at 100 percent! And yes, they can. But they won’t. Because you could vote them out of office.

    Isn’t this an argument against the constitutionality of Obamacare?

    After all, under Obamacare I don’t automatically get to vote for the people providing me with healthcare – like the CEO or board of Kaiser, or Aetna, or Humana. I can’t elect them. Or, rather, I can – but I have to pay for that privilege by buying stock in the company.

    He’s absolutely right that the biggest check on runaway tax-and-provide power is the ability of the electorate to fire the people running the tax-and-provide scheme if we don’t like it. But we lose that ‘ability to fire’ when we are forced to buy from a private vendor instead of being forced to buy from public, representative government. That’s a real, substantive, difference. Under Obamacare, my healthcare is not run by someone whose job it is to represent my interests. Its run by someone whose job it is to represent corporate stockholder interests.

    Another way to think about the problem is this: economically, a forced $1 purchase of a health benefit may be functionally equivalent to paying a $1 tax for that health benefit. But under forced purchase system of Obamacare, I must now also pay the functional equivalent of a poll tax – i.e., buy stock – before being allowed to vote on who runs my health benefits. But poll taxes are unconstitutional. To make the two systems truly functionally equivalent, Obamacare would have to let citizens vote in healthcare corporation CEO and boardmember elections.

  6. Chiroptera says

    One of the key arguments in the health care reform case is whether the individual mandate to buy health insurance has a “limiting principle” — that is, if the government has that power, can’t it also force you to buy almost anything else?

    This is the typical — hell, it is almost the only — argument used by the liberterandians to “argue” against any and all use of state power to achieve important and desirable social goals.

    Remember not too long ago when frankboyd was arguing against requiring pharmacists to abide by a minimum of professional ethics and provide reproductive health care to women? This was basically the tactic he tried to use.

  7. RW Ahrens says

    I would also note that under the General Welfare Clause, congress has the power to tax for a specific purpose having to do with the General Welfare. So one can also use the General Welfare Clause to achieve the same purpose.

  8. bksea says

    A key difference in healthcare is that there is a mandate that hospitals provide care to patients whether or not the patients are able to pay. It seems to me that a mandate to expend money for health insurance is little differnet from the mandate to expend money to provide care. Could this be struck down too?

    This could also be your limiting principle. If congress ever requires grocers to provide broccoli whether or not the customers can pay for it, then congress can mandate that everyone pay for broccoli. I don’t see the former happening any time soon.

  9. says

    But under forced purchase system of Obamacare, I must now also pay the functional equivalent of a poll tax

    Seriously. THAT’S the argument you want to bring into this? The ACA will take away your voting rights because you’re a black person? That being required to purchase insurance for a service that you are guaranteed to eventually use (whether you want to or not) is functionally equivalent to systemic racism against you?

    If you have any black friends, please tell them to slap you in the face. Not hard, but just enough so that you learn not to deputize your country’s history of unforgivable racism into your white whine about how beleaguered you are because you have to choose an insurance provider. Not a specific one, incidentally (which is what your argument is), but any one. A provider, incidentally, that you can dump at any time in favour of their competitors if you don’t like their practices.

    Fuck am I tired of people misusing racism as an argument against things that disproportionately benefit minority groups.

  10. gshelley says

    Could the government have added a tax to everyone to pay for health care (as they do in the UK I think), then given a rebate to those who chose to buy insurance?

    The other problem with the broccoli argument is that the analogy doesn’t work on any level, it is purely a facetious comment that demonstrates the case is likely to be decided on political ideology rather than legal merits. Perhaps if the question had been “Can the government compel you to buy food” it would have been a more apt analogy.
    A similar question, “Can the government forbid you from growing broccoli” would seem to be an obvious yes

  11. drr1 says

    Interesting to note that in the Commerce Clause context (specifically, the dormant Commerce Clause), the Court has accepted this “politics as limiting principle” argument. From United Haulers Ass’n. v. Oneida-Herkimer Solid Waste Mgmt. Auth. (2007), at n. 7:

    The Counties and their amicus were asked at oral argument if affirmance would lead to the “Oneida-Herkimer Hamburger Stand,” accompanied by a “flow control” law requiring citizens to purchase their burgers only from the state-owned producer. [Citations omitted]. We doubt it. “The existence of major in-state interests adversely affected by [a law] is a powerful safeguard against legislative abuse.” Minnesota v. Clover Leaf Creamery Co., 449 U. S. 456 , n. 17 (1981). Recognizing that local government may facilitate a customary and traditional government function such as waste disposal, without running afoul of the Commerce Clause, is hardly a prescription for state control of the economy. In any event, Congress retains authority under the Commerce Clause as written to regulate interstate commerce, whether engaged in by private or public entities. It can use this power, as it has in the past, to limit state use of exclusive franchises. See, e.g., Gibbons v. Ogden, 9 Wheat. 1, 221 (1824).

    Interesting, too, is the tip of the hat to the plenary nature of the commerce power, recognizing that it authorizes Congress to overrule state law democratic processes. Unfortunately, I don’t expect to see anything like this in the Court’s ACA opinion.

  12. says

    Oddly enough, on NPR after the 2nd day of arguments, they had on legal experts who were each a supporter and opponent of the law. When the opponent was asked what was to prevent the states (at least one of which has a mandate) from requiring everyone to buy broccoli, his answer was “politics”. In other words, the exact same answer as above.

    Which leads me to conclude that the legal challenge to the mandate is little more than mushy-headed federalism. “It’s a violation of our sacred liberties for the federal government to do X! Only state governments can do X!”

  13. Josh, Official SpokesGay says

    Why are we talking about this as if it were a tax? It’s not. It’s being forced to buy services from the private sector. The private, for-profit health insurance market is corrupt and works against patient interests. I find it outrageous that we should be forced to support it, no matter how matter “reforms” we foist on it.

    I want single payer, nationalized health care. I do not want the federal government to compel me to artificially prop up a business that I think has no moral right to exist as a profit-making concern.

  14. says

    grendelsfather “Making you buy insurance so that you cannot force others to pay for your own health care is a trivial intrusion of government…”
    To be fair, they’re against the government forcing them to pay for sick, poor people using the ER too, and COBRA and Medicaid.
    Unless the states(*1) do them. Or religious charities. Or the Free Market. But without federal rules or oversight. But funded with federal money that will no longer exist from the federal programs that’ll no longer exist.
    In short, they stand firmly against the both the problem and any hope of realistic solutions(*2).
    So, problem solved.

    *1. “States Rights! 10th Amendment!”
    *2. To paraphrase Buckley, “A Reactionary Conservative is a fellow who is standing athwart reality, yelling ‘Argle bargle!'”(*3)
    *3. But watch them raise hell when they manage to break the ACA, repeal COBRA and gut Medicaid and find, much to their dismay, that, in the unending quest to screw over their hated Other, they’ve managed to screw themselves. This will, somehow, be liberals’ fault.

  15. says

    Could the government have added a tax to everyone to pay for health care (as they do in the UK I think), then given a rebate to those who chose to buy insurance?

    Yes they could. And there would almost certainly be no credible legal challenge if they were to do so. But apparently, calling it a penalty instead of a tax shoves it over into a completely different legal universe, even though it’s functionally the exact same thing.

    No, I don’t get it either.

  16. Chris from Europe says

    @Andy, uncultured Brit
    It had to be amended, but only to correct an insane decision of the Supreme Court. But note that not the whole income tax was ruled unconstitutional, just on interest, dividends, rents etc.

    Oh, and for all: The mandate only requires people who are deemed able to affort insurance to buy it. I think the argument that one has to buy a for-profit product is nonsense. While there may be no other options currently, that doesn’t mean that non-profit insurance (that is truly non-profit) isn’t possible. Furthermore there’s the option for states to provide alternatives to the mandate like a public option.

    The arguments from some liberals against the ACA are largely nonsense. There are good arguments, of course, for example, that a public option would have been a more popular idea and probably more robust in respect to such challenges. But the presumes that an alternative would have passed in Congress when the ACA was muddled through.

    I don’t remember exactly, but as far as I know the Senate bill was used because it was passed already when they still had the votes in the Senate. And under budget rules not every desired change was possible.

  17. Josh, Official SpokesGay says

    You can’t just say “that’s nonsense.” It’s a fact. Even the supposedly “non-profit” insurance companies behave exactly as a corporation would—the premiums are *obscene* and the high level admin get paid massively. Why are you just handwaving that concern away and acting as if all of us are similarly situated and have this smorgasbord of affordable choices? That just isn’t true and it’s really weird that you’re dismissing that.

  18. Chris from Europe says

    Josh, I think I wrote my comment specifically to preempt responses like yours. In respect to principles it doesn’t matter. It’s a practical problem that can be solved. Couldn’t states set up non-profits that deserve the term? Do you ignore the refundable tax credit?

    “the high level admin get paid massively”

    Which the reform limits. The mandate doesn’t go into effect before the exchanges, so these could also alleviate the problem.

    I think “concern” is the correct word.

  19. D. C. Sessions says

    Could the government have added a tax to everyone to pay for health care (as they do in the UK I think), then given a rebate to those who chose to buy insurance?

    Apparently everyone — and I mean no exceptions among the law community — agrees that this would be 100% within the Constitution.

  20. eric says

    Crommunist:

    Seriously. THAT’S the argument you want to bring into this?

    I hadn’t really intented to make any analogy to the pre-civil rights south, but okay, my sincere apologies for an offensive analogy. Ditch that part of my post. Ditch that whole last paragraph as both a bad analogy and insensitive.

    Now, tell me why the first part doesn’t apply; if the main consitutional brake on executive programs is our ability to fire the people who control such programs, why should I consider a program just as constitutional when it insulates the controllers from my ability to fire them?

    Fuck am I tired of people misusing racism as an argument against things that disproportionately benefit minority groups

    I support the idea of a national health care system for the US. I think the only reason we’re in the position about arguing constitutionality is because Obama was forced to compromise with conservatives – and those conservatives put ridiculous and stupid requirements on the legislation which now makes vulnerable to challenge. I hope it passes constitutional muster, because even a half-assed sytem will be much better than the non-system we have now (and will force legislators to be involved in future health debates). But I don’t think it will, because of the stupid structure the GOP forced Obama into using.

    gshelley @10:

    Could the government have added a tax to everyone to pay for health care (as they do in the UK I think), then given a rebate to those who chose to buy insurance?

    Not sure about the rebate thing, but a health care system supported by tax is constitutional. The U.S. has a few of those already, they are just limited in who can participate.

  21. Chris from Europe says

    Now, tell me why the first part doesn’t apply; if the main consitutional brake on executive programs is our ability to fire the people who control such programs, why should I consider a program just as constitutional when it insulates the controllers from my ability to fire them?

    You can. Congress and the executive make the rules under which the firms operate. If they want to, they do control these programs and can completely replace them.

  22. D. C. Sessions says

    RE: having to support <insert expletives> private insurers

    I call your attention to Vermont, which responded to the PPACA by starting up a single-payer system for Vermont residents. This is a feature, not the usual bug, of federalism: the States (e.g. Massachusetts) can demonstrate that a program is effective, beneficial, and economical.

    At which point, of course, lots of people in flyover country will scream and brandish pitchforks so that our representatives and candidates can denounce it as the work of the Devil.

  23. Chiroptera says

    Josh, Official Spokesgay, #13: It’s being forced to buy services from the private sector. The private, for-profit health insurance market is corrupt and works against patient interests.

    A bit off-topic, but I find it funny that many of the conservatives (not talking about Josh, just using his post as another excuse to rag on conservatives) who make this argument against “Obamacare” want to do essentially this very thing…when they talk about privatizing Social Security. That is, replace a government run pension program with mandatory investments in the private sector’s stock market.

  24. says

    Income tax is a great analogy. The broccoli analogy is wrong for other reasons as well. A key factor there is that if you choose not to buy broccoli, our taxes will not then subsidize your broccoli use. When it comes to the health mandate, if people are not forced to buy in, then the remainder of the U.S. taxpayer is left holding the bill when they visit the Emergency Room. Scalia’s comment was moronic on multiple levels. The same holds true for Roberts’ comments about cell-phones.

  25. eric says

    You can. Congress and the executive make the rules under which the firms operate.

    Congress has the power to directly hire and fire CEOs of health care companies? I don’t think that’s in the legislation. If so, show me.

    Without that, I’m not convinced such an indirect brake is constitutional. Congress makes the rules under which EPA and other executive branch agencies operate, too, and I have no problem with that – but all those have political appointees in charge. Elected officials decide who runs them, and their leaders and ‘direction’ change in response to elections.

    The ability of citizens to influence private corporation healthcare decisions strikes me as a “DC” form of representation. Why should District residents complain about lack of representation – they get to vote for president, who can then put pressure on Congresscritters to do what’s best for DC, right? Most District residents would say – wrong. Insufficient. History is pretty clear that without more direct representation, Congresscritters will, can, and DO ignore the interests of District residents in favor of their own residents, even in matters of DC self-rule.

    Likewise here. Without more direct voter feedback, CEOs will ignore the interests of covered citizens in favor of the interests of their stockholders. Such indirect input is (IMO) likely to be insufficient in a matter as important as health. We will be to our healthcare system what DC residents are to Congress.

  26. lofgren says

    I think this case perfectly demonstrates why the individual mandate was a crappy compromise to begin with. We need true state-run healthcare.

  27. dickspringer says

    In 2002 I bought an electric car. For doing so I was given a $1000 tax credit. I am sure there is no problem with the constitutionality of this arrangement. If everyone were to be assessed a surtax of, say, $1000, and then everyone who purchases health insurance were to receive a tax credit of $1000, we would have the exact functional equivalent of the Obama individual mandate, and it should be as constitutional as the tax credit for buying an electric car.

    Shouldn’t functional equivalence be be legal equivalence?

  28. says

    Chiroptera “A bit off-topic, but I find it funny that many of the conservatives…who make this argument against ‘“Obamacare’” want to do essentially this very thing…when they talk about privatizing Social Security. That is, replace a government run pension program with mandatory investments in the private sector’s stock market.”
    But Free Market! Because shut up that’s why!

  29. says

    dickspringer “In 2002 I bought an electric car.”
    *Pbbt!* I didn’t get a subsidy when I bought an eclectic car. A brand new 2012 Mingled Multiform.*

    * And, yes, I realize that probably I’m the only one who finds that funny.

  30. lancifer says

    lancifer,

    …the remainder of the U.S. taxpayer is left holding the bill when they visit the Emergency Room.

    First of all the great majority of people go their whole lives with out having made an ER trip that is picked up by “…the remainder of the US taxpayer(s)…”.

    And if your real goal is a “single payer” system then being payed by the U.S. taxpayer will be the fate of every trip to the doctor or hospital. So what’s the problem exactly?

    I much prefer a system where people who can afford to pay do, and those that can’t are helped either by government of private charities.

    Also the idea that there is some “crisis” threatening the US health care system is nonsense.

    The American health care system operates at a great profit. According to Medscape’s 2011 Compensation Survey average physician salaries ranged from $150,000 for pediatricians to $350,000 for orthopedic surgeons.

    According to Modern Healthcare.com “The nation’s 5,008 community hospitals earned $34.4 billion in profits on $691 billion in net revenue in 2009.”

    There is no shortage of health care. There are increasing costs, but letting insurance companies force everyone into the game is not going to put downward pressure on health care prices. In fact it is likely to do just the opposite.

    The current system is wasteful but making everyone pay into a government controlled system that gives more people health insurance with greater access to more health services is not a prescription for lower prices it is a recipe for runaway inflation.

  31. Chris from Europe says

    There are increasing costs, but letting insurance companies force everyone into the game is not going to put downward pressure on health care prices. In fact it is likely to do just the opposite.

    Why? How would that work?

    The current system is wasteful but making everyone pay into a government controlled system that gives more people health insurance with greater access to more health services is not a prescription for lower prices it is a recipe for runaway inflation.

    Do you oppose universal healthcare? And I dare to call BS on the runaway inflation.

  32. lancifer says

    Chris from Europe,

    Why? How would that work?

    Really, do I have to explain why increasing demand, by giving people greater access to health care services, will increase prices?

    Remember I’m not talking about health insurance costs but the actual cost of health care services. (Which of course will necessitate increases in health insurance costs unless you intend to make the insurance companies operate at a loss.)

    Do you oppose universal healthcare?

    Yes, I oppose so called “universal health care” if by that you mean a completely government run and taxpayer funded system.

    And I dare to call BS on the runaway inflation.

    OK, how do you suppose that giving millions more people access to health care with out increasing supply isn’t going to produce inflationary pricing?

    Of course if you call the increases “taxes” I guess you could win a game of semantics but any way you slice it you’re going to have to pay for all the new service provided to millions of people.

    Unless you want to introduce the “r” word.

    Rationing.

  33. says

    I’m with Chris from Europe. Universal healthcare is bad because of rationing, meaning that people have to wait in line, and increased costs, conveniently hidden as taxes.
    This is why the US spends more per capita than other civilized countries, even with a fair percentage of its population being un- or under-insured, either getting very little or waiting in line.
    Aw, shit. I’ve just stepped on my own argume…No! The US spends less per capita and has 400% of its population covered! U S A! Woo!

  34. Michael Heath says

    I think one of the ironies in this debate is the fact a single-government-payer national insurance plan offering universal coverage would survive the specific conservative objections regarding the constitutionality of Obamacare. However we shouldn’t ignore the fact these same conservatives would never accept socialized health care financing as constitutional, they’d simply adopt other arguments to argue that was unconstitutional as well.

  35. lancifer says

    Michael Heath,

    I think one of the ironies in this debate is the fact a single-government-payer national insurance plan offering universal coverage would survive the specific conservative objections regarding the constitutionality of Obamacare. However we shouldn’t ignore the fact these same conservatives would never accept socialized health care financing as constitutional, they’d simply adopt other arguments to argue that was unconstitutional as well.

    I agree with your insight that a single-government-payer national insurance plan would likely pass constitutional muster. Social Security, Medicare and Medicaid are not fundamentally different as far as the constitution is concerned.

    However, I disagree that conservatives would necessarily argue that such a system was unconstitutional. They would likely just argue that it was ineffective and counter to their vision of the role of the federal government.

    Of course if Democrats passed it anyway and a Democratic president signed it into law they might in desperation go the unconstitutional route.

  36. Chiroptera says

    lancifer, #34:

    I agree with lancifer. The US shouldn’t try universal health care until other countries give it a try. Then we can see how well it works out for them.

  37. Who Knows? says

    Crommunist says:

    If you have any black friends, please tell them to slap you in the face. Not hard, but just enough so that you learn not to deputize your country’s history of unforgivable racism into your white whine about how beleaguered you are because you have to choose an insurance provider.

    A great statement, you win the Internet today.

  38. notredame05 says

    The thought behind the search for a limiting principle is the Court’s goal to adhere to the doctrine the federal government is a government of limited powers and federal power is limited to those enumerated in the U.S. Constitution. The Court, more precisely some on the Court, want to maintain the illusion, actually deceive themselves and the rest of us, their rulings do not result in unlimited government power.

    This dilemma is a creation of the Court. They now look for an extra-textual limiting principle, a limiting principle outside of the text of the U.S. Constitution, because they have deviated so far from the text and original meaning of the U.S. Constitution that the U.S. Constitution is no longer the limiting principle, but it should be.

    However, the rationale of Wickard v. Filburn can be used to justify the individual mandate but the case can easily be distinguished. In other words, Wickard is relevant but not controlling or determinative of the outcome. The fact Wickard did not factually involve an individual mandate permits the Court to distinguish the case and assert Wickard does not support this use of federal power.

    However, the penalty to enforce the mandate is not a tax and consequently, it does not come within Congress’s power to tax under the U.S. Constitution. We know this because it is not called a tax in the law, it is a penalty. The penalty cannot be located anywhere in the IRS code except for collection purposes. The penalty was conceived and serves the purpose of compliance with the law and not to raise revenue. Furthermore, Congress placed several provisions of the Affordable Care Act under the Anti-Injunction Act (the AIA is a statute prohibiting a lawsuit to challenge a tax before the tax is enforced and collected), but Congress did not place the penalty associated with the mandate under the Anti-Injunction Act.

    The penalty is not a tax.

  39. harold says

    As a progressive who supports universal health coverage but doesn’t like the mandates, let’s nevertheless face reality about SCOTUS.

    1) If you want to legally drive a car, a state government already forces you to buy liability insurance.

    2) Okay, but liability car insurance is relatively cheap and semi-voluntary (in many areas you have to drive a motor vehicle to realistically be able to work or even shop for groceries, but you aren’t mandated to have the car in the first place). But HCRA is based on Massachusetts law that includes mandates!

    3) There are other examples of mandated insurance coverage.

    4) State laws must be compatible with the US constitution.

    The argument that the mandates make HCRA “unconstitutional” are prima facie absurd. Taken to their logical conclusion they would radically render all sorts of beneficial, uncontroversial legislation equally unconstitutional.

    Again, I intensely dislike private US health insurers, and would like to eliminate that part of HCRA and have it replaced with either a direct government system of something like Medicare for everyone, or with a European style system that uses private health insurance, e.g. the Dutch system, but much more directly regulates private health insurance.

    However, this is just another example of the right wing of the Supreme Court using their power to say “whatever the Republican Party wants right this second is what we call ‘constitutional’, however absurd the arguments may be”.

    It’s my personal belief that at least some of them are perfectly aware that they are doing this and find it amusing.

  40. says

    “First of all the great majority of people go their whole lives with out having made an ER trip that is picked up by “…the remainder of the US taxpayer(s)…”.

    Facts not in evidence; you do have a citation to a peer reviewed study or gummint whitepaper on this? Yes?

    “And if your real goal is a “single payer” system then being payed by the U.S. taxpayer will be the fate of every trip to the doctor or hospital. So what’s the problem exactly?”

    What is that sentence intended to mean?

    “I much prefer a system where people who can afford to pay do, and those that can’t are helped either by government of private charities.”

    And I want a unicorn that pisses Guiness and shits pepperone pizza–we’re all entitled to our fanstasies, so long as we don’t allow them to keep us from experiencing reality. Well, actually, that last bit is conditional. You can believe, and espouse, any sort of nonsense–some people (lots of them, maybe) will point and laugh.

  41. snoeman says

    lancifer:

    “Also the idea that there is some “crisis” threatening the US health care system is nonsense.

    The American health care system operates at a great profit. According to Medscape’s 2011 Compensation Survey average physician salaries ranged from $150,000 for pediatricians to $350,000 for orthopedic surgeons.”

    So what? The nature of any crisis here in the US has never been about how profitable or unprofitable the overall health care system is. Many of the institutions who provide the care are doing just fine. The crisis revolves around the people who are using the system. As a nation, we spend more money on health care as a % of GDP than any other, while simultaneously leaving millions without non-emergency access to the system and making it possible for even those who are insured to have to resort to personal bankruptcy to pay for care. That’s a crisis.

    Profit isn’t necessarily bad in part of the health care system. When it comes to the delivery of health care, many countries that have national systems rely upon private delivery systems, some that are for-profit and some that are not-for-profit, and it works just fine.

    Where profit needs to be taken out is in the funding for health care. The simple fact is that the interests of health care consumers and the for-profit insurance industry in this country are not aligned. Whatever the means of raising the money — taxes, premiums, whatever — the focus should be paying for care, not profits.

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