[mike777]

One issue I have not seen discussed much in the media is if Mandatory Health Care is constitutional.


A few seem to suggest under the Commerce Clause it might be. I wonder if the ninth and tenth amendments would apply here.

[Lobowolf]

mike777, on Sep 16 2009, 11:03 AM, said:

One issue I have not seen discussed much in the media is if Mandatory Health Care is constitutional.


A few seem to suggest under the Commerce Clause it might be. I wonder if the ninth and tenth amendments would apply here.

After the Raich case, it's hard to imagine the Court saying that the Commerce Clause doesn't apply to...well...ANYTHING the legislature wants it to apply to. As Clarence Thomas said in a Raich dissent, Congress's Article One powers have "no meaningful limits."

But in this case, finding Congressional power to act is no stretch, anyway. That being said, the specific provisions (including the "mandatory insurance" requirement) could be found unconstitutional, but any Constitutional limitations won't be found in connection with asking whether Congress is Constitutionally authorized to take action.

[PassedOut]

Lobowolf, on Sep 16 2009, 11:21 AM, said:

After the Raich case, it's hard to imagine the Court saying that the Commerce Clause doesn't apply to...well...ANYTHING the legislature wants it to apply to.

Certainly true, and a bit sad that O'Connor's dissent did not carry the day.

But for health insurance and healthcare delivery in today's markets, it seems to me that the Commerce Clause would apply even without the extreme stretching that brought us to Raich. The uninsured do use emergency services that affect the costs of everyone.

[Aberlour10]

It might be out of topic...but just 2cents...from the sight of the average Europeans. Its hard to belive what is going on in todays USA on this topic.. mass hysteria, devils, communists,...only to recognize what a modern state need. Were Bismarck and the Kaiser Wilhelm communists as he recognized it and reformed the state introducing the obligatory health care system 1883....which works in his basics till now.

Robert

[kenberg]

It seems to me to be an issue only in the sense that some care may need to be taken in how the bill is written. It will come as no surprise that I have no legal credentials whatsoever, but I suppose we could constitutionally tax every citizen x dollars for the privilege of being an American, and allow a tax credit of x dollars for those who buy medical insurance. I imagine the legal folks who write these bills can do better than that.

I apologize if the following is not strictly on topic, but Obama's analogy with mandatory car insurance got me to thinking: A 25 year old pays more for car insurance than a 50 year old, even if they have the same driving record. The argument is that regardless of the driving record, 25 year olds as a group have more accidents than do 50 year olds. Ok, but 50 year olds make more medical claims. If I have to pay at a rate that is adjusted for the fact that my fellow 70 year olds make more medical claims than younger people do, I will not be happy. But I do not find it so easy to explain why insurance companies can charge a 25 year old more for his car insurance simply on tha basis of his age but would not be allowed to charge me more for health insurance based solely on my age.


Perhaps this falls loosely under the posted topic because while I do not think there should be any legal difficulty in forcing insurance on the young, there is at least an issue of fairness involved if they are essentially subsidizing the insurance of older folks. At the very least we should return the favor by equalizing car insurance. Differential rates in car insurance based on driving records can still be allowed, just not based on age.

[mike777]

I was not going to add this in my OP but of course the govt has the right to tax and mandating car ins. is fine since driving a car is a privilege not a right.

I think Kenberg is discussing the issue of risk and who should pay it, Aberlour is talking about the needs of the state.....

As for those who think mandatory health care is legal under the commerce clause, what is your logic?


Granted I still do not understand how Sweden and many other countries have as good if not better health care, for all, at half the GDP cost. I will go out on a limb and say just about everyone would be in favor of that!

I note I do not see anyone in America including the President or Congress using that as the main selling point.

[Lobowolf]

mike777, on Sep 16 2009, 12:38 PM, said:

As for those who think mandatory health care is legal under the commerce clause, what is your logic?

This is a bit of a misconstruction of the Commerce Clause issue(s), as it conflates two distinct questions.

The first question is a more general one about whether the proposed legislation is under the umbrella of what Congress is authorized to do, as Congress (at least in principle) is supposed to only operate under its enumerated powers. This is the question that involves the Commerce Clause.

The first sub-question is whether the transaction is "commercial," i.e. involving the exchange of goods and/or services, which in this case, it clearly is. The second question is whether the leglisation is intended to regulate that commerce, which, again, is a no-brainer. THe third question is whether the commerce is "interstate," which is really the only potentially tough call, but it's a question that is answered VERY liberally (i.e. if it might apply, it does apply). One of a few prongs for finding "interstate" commerce is whether it "substantially affects" interstate commerce. For instance, local farming (involving crops only sold in a given state) has found to be subject to the Commerce Clause, because it has an aggregate impact on the interstate market for the crops. Against this backdrop, I think it's not hard to conclude that the Commerce Clause could be dropped in here, and it would be much less of a stretch than has been used before to invoke the Commerce Clause. For instance, health insurance companies advertise and sell policies across state lines; people buy policies locally and those policies apply to their healthcare coverage in other states; etc.

But that's only question 1; that doesn't mean it's "legal" necessarily. It only means that it's in the realm of things that Congress can legislate. The particulars of the way in which they address it may be unconstitutional on other grounds. THat's an entirely separate argument. It's like if a Federal law about a labor demonstration is held to violate your right to free speech. Regulating labor demonstrations might be O.K. under the Commerce Clause; that just means that it's the category of things that falls under one (of many) Congressional powers. That doesn't mean that the legislation they enacted passes constitutional muster. There are still issues of free speech, equal protection, due process, etc.

So saying the Commerce Clause applies doesn't make it "legal." It just recognizes that we're in the ballpark of things that Congress is empowered to legislate about.

[mike777]

Lobowolf, on Sep 16 2009, 01:01 PM, said:

mike777, on Sep 16 2009, 12:38 PM, said:

As for those who think mandatory health care is legal under the commerce clause, what is your logic?

This is a bit of a misconstruction of the Commerce Clause issue(s), as it conflates two distinct questions.

The first question is a more general one about whether the proposed legislation is under the umbrella of what Congress is authorized to do, as Congress (at least in principle) is supposed to only operate under its enumerated powers. This is the question that involves the Commerce Clause.

The first sub-question is whether the transaction is "commercial," i.e. involving the exchange of goods and/or services, which in this case, it clearly is. The second question is whether the leglisation is intended to regulate that commerce, which, again, is a no-brainer. THe third question is whether the commerce is "interstate," which is really the only potentially tough call, but it's a question that is answered VERY liberally (i.e. if it might apply, it does apply). One of a few prongs for finding "interstate" commerce is whether it "substantially affects" interstate commerce. For instance, local farming (involving crops only sold in a given state) has found to be subject to the Commerce Clause, because it has an aggregate impact on the interstate market for the crops. Against this backdrop, I think it's not hard to conclude that the Commerce Clause could be dropped in here, and it would be much less of a stretch than has been used before to invoke the Commerce Clause. For instance, health insurance companies advertise and sell policies across state lines; people buy policies locally and those policies apply to their healthcare coverage in other states; etc.

But that's only question 1; that doesn't mean it's "legal" necessarily. It only means that it's in the realm of things that Congress can legislate. The particulars of the way in which they address it may be unconstitutional on other grounds. THat's an entirely separate argument. It's like if a Federal law about a labor demonstration is held to violate your right to free speech. Regulating labor demonstrations might be O.K. under the Commerce Clause; that just means that it's the category of things that falls under one (of many) Congressional powers. That doesn't mean that the legislation they enacted passes constitutional muster. There are still issues of free speech, equal protection, due process, etc.

So saying the Commerce Clause applies doesn't make it "legal." It just recognizes that we're in the ballpark of things that Congress is empowered to legislate about.

thanks....but I still am not sure do you think it is constitutional/legal, period?

btw I understand how Congress can regulate Health Insurance under the commerce clause, you made that clear, but how can they make us buy it under the Commerce clause or does this violate some other part of the constitution?

[PassedOut]

kenberg, on Sep 16 2009, 12:12 PM, said:

I apologize if the following is not strictly on topic, but Obama's analogy with mandatory car insurance got me to thinking: A 25 year old pays more for car insurance than a 50 year old, even if they have the same driving record. The argument is that regardless of the driving record, 25 year olds as a group have more accidents than do 50 year olds. Ok, but 50 year olds make more medical claims. If I have to pay at a rate that is adjusted for the fact that my fellow 70 year olds make more medical claims than younger people do, I will not be happy. But I do not find it so easy to explain why insurance companies can charge a 25 year old more for his car insurance simply on tha basis of his age but would not be allowed to charge me more for health insurance based solely on my age.

Actually, I don't see why young people should have to pay as much for health insurance as we older folks do.

[Lobowolf]

mike777, on Sep 16 2009, 01:10 PM, said:

thanks....but I still am not sure do you think it is constitutional/legal, period?

That's less clear...it might very well be held to be unconstitutional. But if there's a winning argument to scuttle it, I don't think it's going to come from the Commerce Clause.

I think mandatory car insurance is a very poor analogy, for a number of reasons. For instance, if you can't afford car insurance, you have the option of not driving. But there's not a similar health insurance "opt out." Also, mandatory car insurance is liability insurance, for the protection of others; mandatory health insurance is loss insurance, for your own protection.

Apart from that, you also have different impacts across economic lines, which means a different impact across racial lines; you have discrimination against healthy individuals who essentially would be forced to opt in to a system they may not need (or would be disproportionately charged to subsidize others' care)... there are certainly potential footholds for a legal challenged; they'd just have to be phrased in Constitutional terms. But the best footholds seem to be the impact on the individuals being forced to pay, not whether Congress is constitutionally empowered to address the issue, which is essentially the only traction a Commerce Clause argument gives you.

[Trinidad]

mike777, on Sep 16 2009, 07:38 PM, said:

I was not going to add this in my OP but of course the govt has the right to tax and mandating car ins. is fine since driving a car is a privilege not a right.

So, what is the difference with health care? Is getting an ambulance when you call 911 a right or a privilige? And what should it be?

If it is a privilige, then it should be possible to mandate health insurance, in a similar way that you can mandate car insurance.

If it is a right, then everyone should be able to get an ambulance, regardless of their financial situation or whether they have health care. This means that, since someone will have to pay for it in the end, everyone who does have health care insurance picks up the bill for those who don't.

Rik

[awm]

This whole thing seems like a complete disaster. Remember when Obama was running for the democratic nomination? One of the big differences between his position and Hillary was on the issue of an individual mandate for health insurance. Obama opposed a mandate and wanted to try to make insurance more affordable for everyone.

Well, look at the latest bill to come out of the senate. It has an individual mandate. And where are the provisions to make health care more affordable? The new laws on pre-existing conditions basically make it impossible for insurance companies to price based on risk. They will reduce the cost of insurance for the oldest and sickest, but the money's got to come from somewhere and this means an increase in costs for the young and healthy. An awful lot of the uninsured are young healthy people who are not making very much money and figure that pricy insurance plans are not a good investment. These people are getting totally screwed by the new bill -- they are now forced to buy insurance (or pay a fine) and insurance will be even more expensive (for them anyway) because of the laws about recision and pre-existing conditions. The only provisions which seem like serious efforts to reduce costs (public option for example) are getting dropped.

The bill currently under consideration is basically a give-away to insurance companies. If we really want to see health care costs stop rising, we need some kind of reforms to create a market economy. Suppose I am sick, and there are two possible treatments available. One treatment is much more expensive than the other. As long as my insurance company is footing the bill (and no insurance bureaucrat is "coming between me and my doctor") I'm free to choose the more expensive option. This is true even if the more expensive option is not any more effective than the cheaper option -- in fact people tend to choose the more expensive option because they think it's better (because it's expensive) even when it's actually not better. The main issue is that the people making the decision about which treatment I get (me, and my doctor) have no incentive to reduce costs (in fact, because of possibility of malpractice suits and some possible kickbacks, doctors often have incentive to increase costs). Note that this is usually the case in countries with government systems too -- there are a few horror stories (death panels or whatever) about bureaucrats at either a big insurance company or a government organization making health care decisions "for people" and deciding someone "isn't worth" what it would cost to give them good treatment, but these cases are rare. Cutting out the private insurance industry will help with costs a bit (removing the profit margins) but it doesn't address the underlying problem that causes health care costs to escalate (decision-makers having no incentive to keep costs down). I'd like to see reforms where people are required to be responsible for some percentage of their own health care costs, perhaps on a sliding scale (i.e. insurance pays 80% of costs up to $5000/year and 95% of costs between $5000-$20000, and 99% of costs above $20000 -- exact numbers obviously would need more work).

[mike777]

Trinidad, on Sep 16 2009, 01:26 PM, said:

mike777, on Sep 16 2009, 07:38 PM, said:

I was not going to add this in my OP but of course the govt has the right to tax and mandating car ins. is fine since driving a car is a privilege not a right.

So, what is the difference with health care? Is getting an ambulance when you call 911 a right or a privilige? And what should it be?

If it is a privilige, then it should be possible to mandate health insurance, in a similar way that you can mandate car insurance.

If it is a right, then everyone should be able to get an ambulance, regardless of their financial situation or whether they have health care. This means that, since someone will have to pay for it in the end, everyone who does have health care insurance picks up the bill for those who don't.

Rik

If you mandate buying health insurance by calling it a tax ok.....that would seem to make sense. 911 and fire and police are paid using a tax. btw I have not seen them use this legal argument.

OTOH I dont think your analogy with car insurance works... If I dont own a car I am not forced to buy car insurance to help pay for yours...

[kenrexford]

I think some of these analyses are wildly off point.

Whereas COngress may have the power to regulate commerce, I'm not sure how COngress regulates commerce by ordering commerce to take place.

In other words, whereas actually purchasing insurance is commerce (I buy some insurance), a decision to not buy insurance is not commerce.

Could Congress "regulate" the auto industry by forcing me to buy a GM car if I don't need a car?

Could Congress "regulate" the music industry by forcing me to buy 8-track tapes if I don't have an 8-track tape player and therefore don't want any 8-track tapes?

How, then, can Congress order me to get health insurance?

The car insurance example is misleading, to a degree. For, the regulation involved is in the driving of vehicles. If there is a problem, it is with the power of the State to regulate automobile traffic. That said, I personally think that ordering people to get car insurance is wrong, also. But, at least this is actually a regulation on driving and not on living.

Ordering health insurance is ordering the commerce to happen, not regulating the commerce that does happen. There is no legitimate underlying activity being regulated (like driving).

The argument that uninsured people cost us money is a red herring. That costs us nothing. We could let them die. The fact that we, as a society, elect to not let people die is a really good idea. But, this is not a commerce clause issue. This is a decision made by a decent society. If we elect to tax people, after a vote on this, to pay for services to the uninsured, and if we establish conditions to accept this sort of treatment, then fine, do so. Ordering people to obtain insurance for health care is, in my opinion, simply hiding the tax.

Suppose, for instance, that we decided to require people to obtain "crime insurance." People would pay money to insurance companies to cover the costs of prosecuting criminals who victimize us. Then, if we report a crime, the insurance company pays the cops and the prosecutor and the court fees for handling the criminal prosecution against the person who did criminal wrong to us.

That is simply a means of taxing people for the costs of the criminal justice system in a hidden manner. Plus, we end up with private companies determining a fair "cost" of this insurance, based on where we live (high crime area? Gated community), how old we are, how much stuff we have to protect, and the like. This gets regulated, a nightmare, and subsidized for the poor. But, we then end up having "uninsured criminalized victims" problems, and the like.

This, of course, would be ridiculous.

[cherdanno]

awm, on Sep 16 2009, 01:31 PM, said:

This whole thing seems like a complete disaster. Remember when Obama was running for the democratic nomination? One of the big differences between his position and Hillary was on the issue of an individual mandate for health insurance. Obama opposed a mandate and wanted to try to make insurance more affordable for everyone.

But that was always an illogical position. You cannot require insurance company to cover pre-existing conditions (i.e. to take any new customer) without a mandate for everyone to have health insurance. Otherwise, it would be very attractive to avoid buying health insurance, since when you find out you have cancer/are pregnant/... you can always buy insurance then. It would cover all big medical fees except for true emergencies.

I agree that there is not enough cost cutting in the bills yet. The tax exemption for health insurance benefits would have to go, or get capped, but that is politically infeasible Given that is impossible, it would be nice to give a tax benefit to cheaper plans with higher deductibles (basically a portion of the salary that would typically be spent on deductibles should be tax free). Public option seems like a clear win-win and is popular, but can't get past health-insurance-money-rich senators

[nigel_k]

I don't think you can take the phrase 'to regulate commerce ... among the several states' and just break it down in the way that Lobowolf did. It may be correct that health care is commerce, does involve more than one state, and is being regulated.

But the context makes it clear that as much as possible is left to the states. The federal government is empowered to regulate commerce between states because the individual states may not agree. So it's going much too far to say that the commerce clause authorises Congress to establish an entire health care system and levy taxes to pay for it. That should be left to individual states.

Of course, the courts have seldom found any exercise of governmental power to be in violation of the Commerce clause, but that's a different issue from what the clause actually means. And courts may overrule their previous decisions anyway.

The reality is that Obama is on record as wanting a 'single payer' (i.e. state monopoly) health system. He just stopped saying so when he ran for President. That is why the Democrats are so anxious to have a 'public option'. Once that option is in place they can use regulation to drive up the costs of private providers while pouring taxpayers money into the state option until most people move away from their private providers 'voluntarily'. This kind of nationalisation by stealth is a fairly common tactic and has been used by socialists in other countries many times.

[barmar]

awm, on Sep 16 2009, 02:31 PM, said:

This whole thing seems like a complete disaster. Remember when Obama was running for the democratic nomination? One of the big differences between his position and Hillary was on the issue of an individual mandate for health insurance. Obama opposed a mandate and wanted to try to make insurance more affordable for everyone.

I think they go together.

The theory is that the primary reason some people don't have health insurance is because they can't afford it, not because they've decided that they don't need or want it. So if we make it affordable, we can then get away with making it mandatory.

They've already decided that it's not acceptable to just let people suffer and die. When you call for an ambulance, no one checks whether you can afford the hospital they're going to take you to. And Emergency Rooms have to give you a minimal amount of care, regardless of whether you have insurance. So people are already getting some of the benefits of the health care industry even without paying for it (yet they're accusing Obama of promoting socialism).

The right-vs-privilege thing explains why the pricing models are different for health vs. car insurance. Since driving is a privilege, and not a necessity, if you don't like the cost of insurance for someone your age or gender, you can choose not to drive. But health care is a right, so no one should have to compromise on this due to conditions beyond their control. I think it should be OK to charge higher premiums for smokers than non-smokers, since they're causing their own health problems (similar to car insurance surcharges due to tickets for unsafe driving), but elderly people can't help the fact that they're part of a group that suffer from more health problems.

Yeah, health insurance is a form of socialism. We subsidize the cost of care for sick people by charging healthy people the same amount.

[kenberg]

The analogy with car insurance came from Obama, all I said was that it started me thinking. One could scrap the analogy as irrelevant (probably best) or follow it through to some of its other aspects (as I was doing). Analogies often muddy the waters, so dropping it is fine.


Would you buy a metaphor? Health care reform is in a grand slam missing the ace of trumps, playing for a revoke in an online game.

[mike777]

btw, if we start talking about the health care "system" lets keep in mind that means more than doctors, hospitals and nurses. It includes among other things medical supply companies, medical equipment companies and drug companies along with many small privately owned imaging companies.

Who controls or sets prices and capital investment decisions for them is another thread.


For this thread I just wondered if the central govt can legally force us to buy health insurance and not call it a tax.

I note they do not force us to buy police insurance or 911 insurance. In most places they pay for it with a local property tax. Not a central govt tax.

I assumed they can create a health care tax..but I dont see them doing that to pay for this plan. We all know paying for it out of stopping fraud and waste is a joke.

[luke warm]

my view, fwiw (which isn't very much), is that if there is to be universal health care the only way to do it properly is the 'public option', period, paid for through taxation... nothing else, nada... if that can't be done, forget about it... it would have to be actualized (if that's the right word) according to factors such as level of coverage (family, single, etc) and age... i see no easy answers for the pec problem... the analogy to mandatory car insurance should not have been made by obama

congress has become too corrupt for *any* plan to be appealing, or even workable, imo... whatever we get will not be loved