POLITICS APRIL 13, 2012
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In making the legal case against Obamacare’s individual mandate, challengers have argued that the framers of our Constitution would certainly have found such a measure to be unconstitutional. Nevermind that nothing in the text or history of the Constitution’s Commerce Clause indicates that Congress cannot mandate commercial purchases. The framers, challengers have claimed, thought a constitutional ban on purchase mandates was too “obvious” to mention. Their core basis for this claim is that purchase mandates are unprecedented, which they say would not be the case if it was understood this power existed.
But there’s a major problem with this line of argument: It just isn’t true. The founding fathers, it turns out, passed several mandates of their own. In 1790, the very first Congress—which incidentally included 20 framers—passed a law that included a mandate: namely, a requirement that ship owners buy medical insurance for their seamen. This law was then signed by another framer: President George Washington. That’s right, the father of our country had no difficulty imposing a health insurance mandate.
That’s not all. In 1792, a Congress with 17 framers passed another statute that required all able-bodied men to buy firearms. Yes, we used to have not only a right to bear arms, but a federal duty to buy them. Four framers voted against this bill, but the others did not, and it was also signed by Washington. Some tried to repeal this gun purchase mandate on the grounds it was too onerous, but only one framer voted to repeal it.
Six years later, in 1798, Congress addressed the problem that the employer mandate to buy medical insurance for seamen covered drugs and physician services but not hospital stays. And you know what this Congress, with five framers serving in it, did? It enacted a federal law requiring the seamen to buy hospital insurance for themselves. That’s right, Congress enacted an individual mandate requiring the purchase of health insurance. And this act was signed by another founder, President John Adams.
Not only did most framers support these federal mandates to buy firearms and health insurance, but there is no evidence that any of the few framers who voted against these mandates ever objected on constitutional grounds. Presumably one would have done so if there was some unstated original understanding that such federal mandates were unconstitutional. Moreover, no one thought these past purchase mandates were problematic enough to challenge legally.
True, one could try to distinguish these other federal mandates from the Affordable Care Act mandate. One could argue that the laws for seamen and ship owners mandated purchases from people who were already engaged in some commerce. But that is no less true of everyone subject to the health-insurance mandate: Indeed, virtually all of us get some health care every five years, and the few exceptions could hardly justify invalidating all applications of the statute. One could also argue (as the challengers did) that activity in the health care market isn’t enough to justify a purchase mandate in the separate health insurance market. But the early mandates required shippers and seamen to buy health insurance without showing they were active in any market for health insurance or even health care, which was far more rare back then.
Nor do any of these attempted distinctions explain away the mandate to buy guns, which was not limited to persons engaged in commerce. One might try the different distinction that the gun purchase mandate was adopted under the militia clause rather than the commerce clause. But that misses the point: This precedent (like the others) disproves the challengers’ claim that the framers had some general unspoken understanding against purchase mandates.
In oral arguments before the court two weeks ago, the challengers also argued that the health insurance mandate was not “proper” in a way that allows it to be justified under the Necessary and Proper Clause. These precedents rebut that claim because they indicate that the framers thought not just purchase mandates but medical insurance mandates were perfectly proper indeed.
Einer Elhauge is a professor at Harvard Law School. He joined an amicus brief supporting the constitutionality of the mandate.
Correction: This article originally identified John Adams as a framer. It should have identified him as a founder, since he was not at the constitutional convention. We regret the error.
141 comments
Terrific research, Prof. Elhauge, but why wasn't this argued? Is it at least in your amicus brief? I bet Scalia doesn't even dare mention any of this. His phony jurisprudence of Original Intention would leave him unable to do what he clearly wants to do, strike down the mandate.
- roidubouloi
April 13, 2012 at 12:21am
Apropos of nothing, the recent video ads are driving me fucking nuts! I pay for this magazine, yet have to scroll down to find and kill the obnoxious audio with every article I open?
- Curran1
April 13, 2012 at 12:27am
This sounds like a smoking gun! Congratulations, Mr Elhuage, on uncovering it. But I am also with Roid--why in the name of all that's holy hasn't this been part of the discourse already! Was the liberal law establishment so arrogant and naive that they didn't do due diligence on their research? Make no mistake--this is a -powerful- set of evidence! Why has it taken till now to come out (not that the delay reflects on you, Mr (?) Elhuage, whose work here appears both exemplary and important)?
- Curran1
April 13, 2012 at 12:37am
I've got to agree. This is some great work, but it would have been great if we could have had it two months ago. This should have been front and center in the president's speeches and the oral arguments.
- XLProfessor
April 13, 2012 at 12:53am
Ditto. Great piece, great argument. Too bad it hasn't been a prominent part of the political, policy and legal discourse regarding the ACA.
- Thunderroad
April 13, 2012 at 1:45am
This sounds almost too good to be true. Can we get some confirmation that this is actually the work of Professor Elhauge.
- NateG
April 13, 2012 at 1:51am
Medical insurance in the 18th century? Protective labor legislation? Mandate to buy firearms? Sorry, but this supporter of the ACA is skeptical. Why are there no specifics in this article?
- BillW
April 13, 2012 at 7:28am
Don't confuse the concept of a mandate with the legal issue of federal jurisdiction. The federal government has exclusive admiralty jurisdiction (e.g., if a seaman is injured, federal law applies and any lawsuit arising from the injury is in federal court) and, in 1792, America was at risk of another war with Britain and a war with Spain or France, the latter using alliances with native Americans to inflict violence and death on Americans, the war power being the federal government's broadest power.
- rayward
April 13, 2012 at 7:37am
Think Progress reported on this idea two years ago: http://thinkprogress.org/politics/2010/03/23/88253/cuccinelli-washington/
- propjoe
April 13, 2012 at 8:17am
Curran, the three part solution to your problem: Firefox + No Script add-on + Adblock Plus add-on
- tmmats
April 13, 2012 at 8:48am
ray, that does not cover the law mandating Americans buy guns, the government could simply have taxed Americans and then provided guns to local militias but they didn't and it was considered legal. And in 2012 we are at risk of another war in Iran (if Romney is elected a practical certainty) so young people have to be healthy in order to fight it so that leaves government two choices, mandating insurance purchases or taxing them and then providing it. personally, I think a law mandating the purchase of guns is pretty damn stupid regardless if the framers thought of it. If the mandate is upheld the Court will surely set limits on it lest some Southern states mandate gun purchases and then rely on the arguments laid out here.
- blackton
April 13, 2012 at 9:46am
You can an honorary law degree for the first sentence, blackton. That is a terrific point. The perfect reply.
- roidubouloi
April 13, 2012 at 10:19am
I think it's a dubious tactic to use laws passed by the Framers as a determination of their constitutionality. If we went that route, we'd have to conclude that the Sedition Act of 1798 which prohibited "malicious" writing about the government was constitutional, even though it restricted core political speech that would be struck down as a clear First Amendment violation today. Also, these mandates were enacted before the establishment of judicial review in Marbury v. Madison, which makes it more than a little difficult to determine whether they would have survived judicial scrutiny.
- dsimon
April 13, 2012 at 11:12am
I am surprised by an argument that the government can only order me to do something if I am engaging in interstate commerce like a shipowner does, since I thought the rule is not whether I engage in commerce but whether my inaction impacts on interstate commerce, and the failure to buy health insurance by enough people does that. I had thought the issue was whether the government could order me to buy something under the necessary and proper clause and I think Professor Elhauge addresses that with a ribbon on it.
- Nusholtz
April 13, 2012 at 11:20am
Not so fast blackton and roid. The “mandate” to purchase guns could very well be deemed authorized by the power delegated to Congress to “raise and support armies” and to “provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States,” along with the “necessary and proper" clause. And, as dsimon points out, none of the historical “mandates” that Elhauge identifies were judicially determined to be constitutional, much less authorized under the Commerce Clause. That said, the historical “mandates” do help put the lie the proposition that the ACA “mandate” is an unprecedented instance of the federal government coercing affirmative commercial activity. Even if it is not authorized by the Commerce Clause (and I think it is), to refer to it as some kind of tyrannical overreach is intellectually dishonest. Indeed, most of those who refer to it as tyranny would have to agree that the “mandate” would be authorized by the power to tax, and/or that a single payer system would be constitutional. Calling it “tyranny” is highly disingenuous, even if it were to turn out that the Court deems the “mandate” not to be specifically authorized by the Commerce Clause. Dhurtado
- NR143296
April 13, 2012 at 11:40am
The argument, Nusholtz, albeit a specious one in my view, is that there is a constitutionally significant distinction between "activity" and "inactivity." Though "inactivity" clearly can have an impact on commerce, there argument goes, it is beyond the government's legitimate authority to coerce individuals into commercial activity in which they otherwise would not participate. Of course, that limitation is nowhere to be found in either the text of the Commerce Clause or in the case law interpreting the Commerce Clause. If there is such a limitation on the power of the federal government, it needs to be found elsewhere. Dhurtado
- NR143296
April 13, 2012 at 11:49am
"the" argument goes
- NR143296
April 13, 2012 at 11:51am
Yikes. The logic in this article is flaccid. There is a reason this wasn't argued in front of the court for sure. When it comes to the defense of the country, the government does anything it wants. Full stop. That can include making people buy guys. You know, "well regulated militia" and all. Making a seaman buy insurance, as NR hits on, regulates ACTIVITY, not INACTIVITY. If you don't want to buy it, then don't become a seaman. What is unprecedented in ACA is that it regulates INACTIVITY, and in the process requires someone just existing to buy something from a PRIVATE entity even if they don't need it. It is called unprecedented because it is unprecedented. WA state is one of 2 states that requires naturopathy as part of all health care plans. Take ACA and wind it forward 20 years. Every special interest group will be lobbying to get their "therapy" covered as part of ACA because it will be enormous windfall for their member. It will eventually devolve into a massive plan that requires everyone to buy coverage NOT just for basic medical, but it will grow to include massage therapy, aromatherapy and anything that can be shown to provide even a modest benefit to health. And the consumer will be forced to buy all this. Whether they want it or not. No thanks.
- seattleeng
April 13, 2012 at 12:28pm
I "hit on" the activity/inactivity distinction, Seattle, but then destroyed it. Neither the Commerce Clause nor the constitution recognizes any such distinction. If you think they do, please show us where. By the way, the phrase "regulate inactivity" is non-sensical. You cannot regulate inactivity because, by definition, there is nothing to regulate. What you can do is to coerce someone into an activity. And the federal government does that all the time. "If you don't want to buy [insurance], then don't become a seaman" is the perfect paradigm to support the "mandate." If you don't want to purchase health insurance, then don't consume medical care. We all do or certainly will consume medical care. That is the relevant market, and virtually all of us are in that market. Dhurtado
- NR143296
April 13, 2012 at 12:52pm
NR writes: "If you think they do, please show us where" There are a ton of lawyers already working on this. We'll see what scotus says. NR writes: "If you don't want to purchase health insurance, then don't consume medical care." But under ACA, I don't have this option. In my 20's, my total medical expenses were under $1000 for an entire decade. I could have easily self funded that. So could most. What if Jerry Fallwell won the next election and decided everyone needed to buy "Resurrection Insurance" to anticipate the day that Jesus Christ arrived and so that we'd have the money to be ready for him. Would the government have the right to make you buy that? Odds of it happening are one in a trillion. Hell no. What about meteor insurance? Odds of needing it are 1 in a billion. What about earthquake insurance? Odds of needing it are 1 in a million. What about cancer insurance? Odds of needing it are in in 10 What about health insurance? Odds of needed it are 1 in 5. Yes, that's right. If I have a broken arm I don't need insurance. Many get to to be old without needing any expensive medical care. The government does not have the right to make EVERYONE buy these things. But it sounds like you think the government COULD require us all to buy resurrection insurance. Do explain how they can require that????
- seattleeng
April 13, 2012 at 1:06pm
NR143296I am confused by your post. I had indicated that inactivity which impacts on interstate commerce can be regulated, and, as roid has pointed out, the mandate is "necessary" because the act can fail without the mandate. This leaves the issue of whether it is "proper," and it could not be improper if the framers employed compulsory health insurance in 1790. You are saying that there is no inactivity - activity dichotomy, which seems irrelevant to my point and I am unsure why my screenname appears in your post.
- Nusholtz
April 13, 2012 at 1:47pm
In my 20's, my total medical expenses were under $1000 for an entire decade. I could have easily self funded that. So could most. oh for heaven's sake. You got lucky, but had you had a ski accident and broke your neck you would have run into the hundreds if not millions of dollars in lifetime care. And if you don't ski how about falling in the shower? Don't you understand insurance or are you claiming to be somekind of superman? Answer me this, did you or did you not have health insurance when you were in your 20's and if not if you had broken your neck or gotten cancer would you have refused health care or would you have stuck the American people with the bill? If you had insurance, then why? After all since you didn't spend then you must admit you were a stupid fool by your reasoning. I doubt though that you will answer these questions, or at least answer them with any sense.
- blackton
April 13, 2012 at 1:56pm
Again, seattle, we've been through this before -- you're extrapolating from you own extremely limited individual male experience to the generality. Women are half the population, to take an obvious counter-example, and they have different health care needs (as do children) at different stages in life. Regarding the questions raised above as to why these matters didn't feature a few weeks ago in the debate -- I think one answer is that there is a great desire to avoid history in America, whether it's the history of mandates, the history of racism, or the history of labor union organizing. I often think that historians and other humanities scholars have things to contribute to public debate on current issues -- but we are never asked. The impression is that people prefer some established one-note legend (It's Madison vs. Marbury all over again!) rather than hear about the complexities that might challenge current over-simplified positions. The general attitude of "moving right along" in the U.S., while of great advantage in some areas of life -- has the downside that we don't seem to be able to recall what happened the day before yesterday. So while abstract legal and constitutional issues were front and center, historical perspective on those issues remained almost completely absent.
- ironyroad
April 13, 2012 at 2:31pm
"What is unprecedented in ACA is that it regulates INACTIVITY" It's entirely precedented. It's precedented in Wickard v. Filburn which regulated the inactivity of not putting wheat on the interstate market. It's precedented in public accommodations laws which regulated the inactivity of not serving certain people in restaurants. I know, the response is that people were already in the "activity" of growing wheat or serving restaurant customers. But who are we to define the scope of an "activity"? The restaurant owner was circumscribing the scope of his "activity" to certain people. Who are we to second-guess that scope and further extend his commercial reach against his own business plan? "But it sounds like you think the government COULD require us all to buy resurrection insurance. "Do explain how they can require that?" Why couldn't they? I think they very well could. But they won't, because it would be really stupid and legislators voting to require it would be voted out of office. This is akin to the "broccoli mandate" argument. Any state is free to pass a broccoli mandate. So are our peer nations. But despite the march of the centuries, none have done so. Why? Because it would be dumb and sometimes democracy works. On the other side, lots of states have a car insurance mandate. Why? Because it makes the auto insurance market work better. It's a good idea, and sometimes democracy works. (And I have little tolerance for the "you don't have to own a car" argument. In most parts of the country, most people have little choice but to own a car.)
- dsimon
April 13, 2012 at 2:55pm
First, as regards whether or not this was used in the arguments before the court, I wouldn't be surprised if this stuff was not included in the amicus briefs, but I don't know. Does anyone here? Second, as regards"activity" vs. "inactivity," the whole point of a health care mandate in particular is that, when it comes to health care, the distinction is vanishing to the point of meaningless. Anyone born in a hospital has used the health care system. Anyone who has ever seen a school nurse has used the health care system. I challenge anyone to come up with a significant percentage of the American population who has not used the services of some health care professional somewhere, somehow. 0.000001% maybe? If the law needs to be amended to allow someone who has never, ever had contact with a health care professional to avoid the purchase of insurance, fine. But I'll bet you couldn't fit them into a modest sized auditorium.
- timteeter
April 13, 2012 at 4:26pm
Oops. Damned double negative. Make that "was included."
- timteeter
April 13, 2012 at 4:28pm
OK Seattle. First, you don’t have the slightest idea whether or why the ACA “mandate” is unconstitutional. Fair enough. Second, if you spent only $1,000 for medical services during a 10 year period then you surely are among an infinitesimally small minority. (Of course, you are not revealing whether you in fact had insurance coverage during that period and were paying only deductibles, or whether you were the sole source of the funds used to pay for the medical services you consumed, or whether you irresponsibly eschewed periodic checkups, thus increasing the risk that you will ultimately pose substantial costs on taxpayers.) The odds that you will consume medical services in the future are easily 5 in 5. And the odds that you will consume medical services during your lifetime that, absent insurance, will impose substantial costs on the rest of us are also surely pretty close to 5 in 5. Third, regarding “resurrection insurance,” I will indulge the absurdity. The fact that there is virtually no chance of the need for such insurance, and that even if there were it would impose no cost on the rest of us, easily distinguishes it from the health care market, where there is at least a very high probability, if not a certainty, of each individual consuming medical services, and, in the absence of insurance, imposing the cost on the rest of us. Perhaps more fundamentally, a governmental requirement to buy “resurrection insurance” would violate the religion clauses of the First Amendment. Remember my earlier post in which I said that one of the constraints on the Commerce Clause power is the Bill of Rights? Dhurtado
- NR143296
April 13, 2012 at 4:34pm
Perhaps I misunderstood you Nusholtz. You said, “I am surprised by an argument that the government can only order me to do something if I am engaging in interstate commerce like a shipowner does, since I thought the rule is not whether I engage in commerce but whether my inaction impacts on interstate commerce[.]” I was attempting to explain that the opponents of the “mandate” make the argument that impact on interstate commerce is not sufficient to render the act constitutional; they argue that, even if inaction can affect interstate commerce, which it surely can, compelling an activity exceeds the government’s power under the Commerce Clause. “Regulating inactivity,” in their parlance, is another way to say ordering you to buy something. When it is pointed out to those opponents that contemporary federal laws and regulations are rife with provisions that compel activity, they respond that the government can compel an activity only where an individual has already chosen to enter into the relevant market. They narrowly define the relevant market here as the insurance market, rather than what I would consider the relevant market; the healthcare market. With regard to the historical examples that Elhauge cites, Seattle invokes that same argument; that the government could compel seamen to purchase medical insurance only because they had chosen to become seamen. But as I pointed out to Seattle, there is nothing in the text of the Commerce Clause or in the caselaw interpreting the Commerce Clause that erects such a limitation. And, you probably know this, but the necessary and proper clause is not an independent grant of power. It comes at the end of Article I, Section 8 of the Constitution, which enumerates the grants of power to Congress, and provides that Congress can make all laws that shall be necessary and proper for the execution of the “foregoing Powers.” If there indeed were some constitutional constraint on the coercion of economic activity (e.g., buying something), the necessary and proper clause could not authorize it. Dhurtado
- NR143296
April 13, 2012 at 5:07pm
seattleeng: When it comes to the defense of the country, the government does anything it wants. Full stop. That can include making people buy guys. You know, "well regulated militia" and all. [Bold mine.] As a child I was shocked to learn that people were allowed to own men (and women) at the time the Constitution was implemented. However, as far as I know, no one was obligated to purchase slaves. The benefits of my subscription are growing by leaps and bounds. Pretty soon I will be almost as well qualified to serve on the SOTUS as Clarence Thomas.
- skahn
April 13, 2012 at 5:35pm
This article starts on terrible premises. I'm in favor of the health care mandate, but the laws passed by the early founders are not an arbiter of constitutionality. Today, we interpret Constitutional principles in a way that took a while to become widely ingrained in our leadership. Case in point from high school history: The Adams administration passed the Alien & Sedition laws in 1798. The sedition elements were a clear affront to our modern understanding of the First Amendment and free speech. No one would argue they'd be constitutional today.
- MICRM
April 13, 2012 at 5:49pm
Sorry, sdimon, I read the comment trail after posting. You beat me to the punch about the Sedition acts.
- MICRM
April 13, 2012 at 5:52pm
NR143296 Okay.
- Nusholtz
April 13, 2012 at 6:01pm
Volokh Conspiracy did a pretty thorough takedown on the claims in this article back in 2010. Not sure why TNR is running these two year old memes without any research. I thought that is why we paid for this content :) Maybe with the firewall coming down, they let more stuff through without any checking. Of course, as I indicated above, the fact that these arguments were NOT presented to the court telegraphs that something wasn't solid about them. Now we know. From Volokh ----- This 1798 statute (5 Cong. Ch. 77, July 16, 1798, 1 Stat. 605) is currently making the blogospheric rounds as purported proof that the 2010 congressional mandate to purchase health insurance from a private company is based on long-established practice. Incorrect. Sections 1 and 2 of the act impose a 20 cent per month tax on seamen’s wages, to be withheld by the employer. Section 3 requires that all the withheld taxes be turned over to the U.S. Treasury on a quarterly basis, and that the revenue shall be expended in the district where it was collected. The revenue shall be spent to support sick and injured seamen. So the Act is totally dissimilar to the Obamacare mandate. In the 1798 Act, the government imposes a tax, collects all the tax revenue, and spends the revenue as it chooses. This is a good precedent for programs in which the government imposes a tax and then spends the money on medical programs (e.g., Medicare), but it has nothing to do with mandating that individuals purchase a private product. Under section 4, if there is a surplus in a district, the surplus shall be spent in the construction of marine hospitals; the executive may combine the tax revenue with voluntary private donations of land or money for hospital construction. The President may also receive voluntary private donations for relief of the seamen, or for operation of the hospitals. Section 5 instructs the President to select the directors of the marine hospitals. The directors shall make quarterly reports to the Secretary of the Treasury. The directors will be reimbursed for expenses, but will not receive other compensation. Today, the 1798 Act is viewed as the beginning of the creation of the U.S. Public Health Service. The Act is very strong precedent for the federal government imposing taxes and dedicating the tax revenue to medical care for the taxed class. Further, the government may provide the medical care directly, or may cooperate with private individuals for the providing of that care. The 1798 Act thus shows that Medicare, while vastly broader in scope than anything from the Early Republic, is generally consistent with constitutional practice of that period. The Act certainly did not order seamen to purchase any form of private insurance, nor did it order them to purchase any other type of private good. The Act is a solid precedent for federal involvement in health care, and no precedent at all for a federal mandate to purchase private products.
- seattleeng
April 13, 2012 at 6:05pm
NR writes: "Second, if you spent only $1,000 for medical services during a 10 year period then you surely are among an infinitesimally small minority. " Not true. Average lifetime expenditure for health care averages around $300K, rising slowly through adult life, and then exponentially after age 50. On average, it costs roughly $25,000 in health care for a male to make it through his first 30 years of life. His next 50 years will cost more than $250K. Thus, my life experience is extremely common (<$1000/year when young). Sure, some end have accidents or serious illnesses. Most don't. That's why the average cost is so low. When you mandate the healthy buy a service for something they overwhelmingly don't need, it is very simply the young subsidizing the old. www.ncbi.nlm.nih.gov/pmc/articles/PMC1361028/ don't eat the linkdon't eat the linkdon't eat the linkdon't eat the linkdon't eat the linkdon't eat the linkdon't eat the linkdon't eat the link
- seattleeng
April 13, 2012 at 6:17pm
Seattle is correct that the 1798 act mandating an insurance system is a precedent for a single payer system (like Medicare). It is dissimilar to the Obamacare mandate, although it is worth recalling when this act was brought up a couple of years ago that many on the right were yammering about the government having no Constitutional authority to get involved with health care at all. Of course, even under the mandate, Seattle wouldn't have to buy insurance. He would just have to pay a modest penalty if he prefers to take his chances, knowing that if he is wheeled in to the ER after a car accident, the hospital will save his life and make the rest of us pay of for it even if he is freeloading on the system.
- JEFF FREY
April 13, 2012 at 6:43pm
"When you mandate the healthy buy a service for something they overwhelmingly don't need, it is very simply the young subsidizing the old." Except that those who eventually do need it, really need it. All it takes is one accident, or the misfortune of having a genetic or chronic disease, and then even young people will desperately need insurance. And when they make their decision to buy or not, they make their decision knowing that they will be provided at least emergency medical care even if they are uninsured -- Unless we want to become a libertarian paradise where people are left to die on the streets if they did not have the personal responsibility to be wealthy enough to pay for whatever calamity befalls them. When the young are young, the old subsidize the young. Not just within families, but paying for schools etc. Eventually, the young subsidize the old. Then the young become old and the circle is completed. Why pretend it is otherwise?
- JEFF FREY
April 13, 2012 at 6:49pm
SeattleEng Here is the act, the seaman are required to provide health care, not insurance, but there are mandates for seaman to buy various items for the health of the crew including medicines and payments to a physician (starting at the paragraph bottom of the page and the few paragraphs on the next page). http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=257
- Nusholtz
April 13, 2012 at 7:05pm
Interesting, Seattle, that you choose to address only one of the points in my post. You don’t explain why you think the “mandate” is unconstitutional (a different question from whether you intuitively feel it is government overreach). You don’t address the fact that you are almost certain to consume substantial medical services in the future (indeed your figures show just that), and that, even if you could pay for it all out of your pocket (most people could not), that means you are a participant in the market (as you are even if you only spend $1,000 per decade). You don’t address the fact that your hypotheticals are not remotely analogous to the probabilities with regard to consumption of health care. And you don’t address your failure to recognize that what you thought was a clever hypothetical regarding “resurrection insurance” was easily dispensed with by reference to the First Amendment. All of that said, even I were to trust your data, it does not remotely demonstrate that the average person consumes only $1,000 of health care between the ages of 20 and 30. By purchasing insurance while young and healthy, you may be subsidizing the old, but so what? There is no constitutional provision that I am aware of that prohibits the government from requiring the young to subsidize the old. You certainly could characterize medicare and social security as doing the same. Dhurtado
- NR143296
April 13, 2012 at 7:17pm
Dhurtado, I am not surprised seattle did not answer because he has no rational answer, hence he ignored the question. I come across this time and time again when talking to Republicans, they ignore the question over and over because they know (the smart ones anyhow) that the mandate was originally a Conservative position to deal with free riders.
- blackton
April 13, 2012 at 7:27pm
I don't find the posted arguments persuasive for all the reasons that have been expressed and linked to in this thread--like from the Volokh blog. I spoke with the smartest lawyer I know, Canada's greatest civil litigator, the greatest legal mind I have ever encountered, who, when his views coincide with mine, fortify my own confidence in them immensely. He and I agree that there is is no obvious, necessary or logical answer to the question of those volitionally without insurance are in commerce or not in commerce. The closest one can get to that is to argue by analogy. And the analogies work both ways. At the point that that issue gets determined ideological predeliction will play its important role in that decision set out in legal reasoning. If the reasoning is plausible, that's about the best one can hope for. Not for nothing have the federal appellate judges been divided on the issue. For myself, I find the main post tendenditous in straining to give questionable legal cover to a desired outcome. My expectation is that either there will be reference to main post's arguments or that they will be entertained only to be dismissed. Which is not to say the mandates won't be upheld on the array of arguments presented to the court. My own call is that the mandates will be upheld 6-3 or 5-4 win Kennedy and or Roberts voting with the liberals and Roberts doing so in significant part out of institutional self consciousness in not wanting his court associated with striking down such a monumental piece of legislation. But to state the obvious, if the court strikes down the mandates, then commerce clause jurisprudence will b what it then becomes given the reasoning employed, limiting principles and want not.
- basman
April 13, 2012 at 8:05pm
Corrections: ...there will be NO reference to the main post's prior arguments... ....limiting principles and WHAT not... I'm with dhurtado on one point, ...OK Seattle. First, you don’t have the slightest idea whether or why the ACA “mandate” is unconstitutional... but add neither does he, I or anyone else save for the judges assuming they have in fact decided and are now just writing it all up in their complicated ways.
- basman
April 13, 2012 at 8:13pm
basman I hope you are right about at 6-3, 5-4 vote to uphold, but I question your use of Canada's greatest litigator as a resource and query why not East Timor? More importantly, I thought the issue was not "of being in or out of commerce" but whether the conduct impacts on commerce; and while a single person not purchasing insurance has little impact, if any, many, many people certainly does.
- Nusholtz
April 13, 2012 at 8:15pm
Jeff Frey writes: "Except that those who eventually do need it, really need it. All it takes is one accident, or the misfortune of having a genetic or chronic disease, and then even young people will desperately need insurance." Of course. That's why I have insurance. Remember, I am the guy lamenting those that prioritize tattoos over the basics. I am the guy rambling on that people seem to have money for xbox, but not for sure insurance. But I am not ready to make take the step that they MUST buy insurance. Because I know it will be a matter of years until the gov had mandated a gold-plated minimum insurance package, including aromatherapy and healing crystals and a million other quack treatments. And that gold-plated package will be free to those that have enough for tattoos, but somehow not enough for anything else. And they'll be asking ME to pay for this gold-plated package for everyone else. Ergo, as I've said all along here, I'm all for letting someone buy into insurance at any time, but it takes 6 months to start actually working for you. And if you let it lapse, the 6 month counter starts again. Additionally, I am all for removing the backstop from hospitals where non-payers are given a pass and medicaid back stops the unpaid bill. Remove that, and then garnish the wages of the non-payer at 5% or so until the bill is paid. Very soon, people learn there is a sweet incentive to get into the pool. It's a carrot. Not a stick.
- seattleeng
April 13, 2012 at 9:11pm
NR writes: "All of that said, even I were to trust your data, it does not remotely demonstrate that the average person consumes only $1,000 of health care between the ages of 20 and 30." I know, math is hard. Let's work the numbers. 100 people averaging $1000/year is $100,000 per year. Now, let's assume the top 2% (2 people) have serious medical issues. They are $30,000 per year. Cancer, car crash. Whatever. That is $60,000 they consume of the $100,000. Now assume the next 8% (8 people) have pretty serious issues needing $3,000 per year. That is $24,000 per year. The top 10% have thus consumed $84K of the $100K. That means the remaining 90 people will consume the remaining $16K, or $178/person per year. You can run the numbers however you wish. But the bottom 50% consume almost nothing. Thus, going a decade on $1000 of medical care when you are young is easy. NR writes "You don’t explain why you think the “mandate” is unconstitutional (a different question from whether you intuitively feel it is government overreach)." I'm not a lawyer. What does it matter? I pointed a link to the Volokh conspiracy where there's a decent argument. And there's a million pounds of ivy league grey matter working on this for the scotus. I can tell you that if the gov had a great track record with these types of things, I'd be all for it. But they don't. They have a pathetic track record when you look at Medicaid, SS, etc. These turn into massive screw jobs for everyone, rich and poor. As we've covered at length, SS is a screw job for all concerned. If you are an electrician or a CEO, your return on SS is pathetic. Right about now DSimon is typing that it's not a retirement program. Spare me. It was sold by FDR as a retirement program, and the SS administration computes an effective ROI every year. The only reason it's not sold as a retirement program anymore is because the numbers are so pathetic. They are embarrassing. As I've noted before, there are parts of ACA I like. The 8-10% max of salary going to medical is awesome. The no-preexisting conditions is good too. But rather than taking 5 core principles that all wanted to do a good job on those, we have something unbelievably prescriptive which will turn into yet another nightmare implemented by a zillion bean counters and lawyers. Someone in my immediate family owns a retail store in california. His wife is in a wheelchair and has suffered from lifelong RA. Horrible, horrible disease that eats her up bit by bit due to circulation caused by a lifetime of very strong drugs. One day, he gets a letter from a guy who claims to have used the bathroom in his store, and is in a wheelchair, and he couldn't reach the light switch. And his attorney would like $30,000 for the problem. And this episode really typifies how quickly the good intentions of government (ADA) just spiral into a freaking mess every single time. And yet we're asked for more and more. The ACA is 10X more law and minutia than the various ADA rules and regs. Get ready. This will kill us in the end. We'll be like Europe, all wondering when the government can give us more stuff. Everyone sitting around waiting for their next vacation. Meanwhile, the gov employees are making 30% premium over their private sector counterparts. With no fear of ever being fired. While partying away on the tax payer dime in Vega. It's a joke. And these massive frameworks that you all adore are the very lifeblood of these bureaucratic leeches. But, hey, I'll personally be fine. I take great comfort in that. But my heart breaks for our young people that will have the life bled from them and the spark of innovation extinguished.
- seattleeng
April 13, 2012 at 9:42pm
Nusholtz, I talked about that guy because he's very smart and when he thinks something through and comes to a conclusion, it's weighty for me. That's not to say the proposition isn't to be judged on the merits but it simply involves me of getting by with a little help from my friends. As for East Timor, I'm not sure of the way you mean that. If you mean the guy being in Canada doesn't mean much and so why not a guy in East Timor, I'd say that once the arguments are fairly set out and ratios of the previous commerce clause cases are set out, a guy with a great lesgal mind, I'm not referring to myself, can certainly come to a conclusion to be given its due considering the source, whether he's in Canada or, I should think, East Timor, especially the former which is pretty close in its legal traditions, doctrines and legal reasoning to those in America, all differences being granted. I have a different view than you of the foundational issue in the case. As I understand it, it's whether those without insurance are in or not in commerce. If they're in commerce then it seems fairly patent to me your federal gov't can force them to purchase contracts. If they're not in commerce then arguably that's that. I thought it was your govt's threshold point that the uninsured are in commerce because of their inevitable engagement with the health care system regardless of when and the cost shifting that then occurs. And I thought the challenger's threshhold argument was that they are not, and not only not but subsidizing those that are by being mandated to buy health insurance beyond what they might rationally decided they needed at a young and health age, and that in the context of the framing of these issues "inactivity"--i.e.not doing anything at the moment relative to health care or health care insurance--meant they were out of commerce and therefore beyond the reach of U.S. commerce clause jurisdiction. No?
- basman
April 13, 2012 at 9:43pm
I think basman states the issue clearly. For me the clinching fact is that the decision to go without insurance does in fact impact the cost of service for everyone else -- in my view the idea that people are not actually in the health care market is illusionary, given that no society in which we would want to live will let the uninsured die on the sidewalk.
- JEFF FREY
April 14, 2012 at 12:12am
seattleeng: "Because I know it will be a matter of years until the gov had mandated a gold-plated minimum insurance package, including aromatherapy and healing crystals and a million other quack treatments." That argument might have some weight if it had any evidence at all to support it. But it doesn't. Other countries that have mandates, and there are many of them, don't require such packages. Again, it's because democracy does sometimes work. (Really, seattle, as I recall you've read T.R. Reid's The Healing Of America, which is full of actual evidence and data on these matters and renders such speculation unnecessary.) In fact, it's the mandate itself that works against such excesses. When everyone is in the system, it provides a greater political incentive to keep costs down, which means keeping out such trivialities and other "quack" treatments. (But even if they didn't, how expensive are crystals?)
- dsimon
April 14, 2012 at 12:24am
Basman- Assuming you are correct that either a decision upholding the "mandate" or a decision striking it down could be supported by reasoning that is plausible, the "mandate" should be upheld. The general rule of decision with regard to the constitutionality of statutes is that they are to be presumed constitutional, with the burden on the challenging party to show that a statute is not constitutional. If there is a plausible argument either way, the statute should be upheld. With regard to you next post, you are right that I don't know how the Court will rule regarding the ACA mandate. But at least I can construct an argument as to why it should upheld. If Seattle cannot construct an argument as to why it is unconstitutional, he has no business making that assertion. Moreover, I'm not sure I agree with you that the answer to whether the "mandate" is constitutional is an interpretive toss-up. The Court has interpreted the Commerce Clause as reaching even purely non-commercial conduct if that conduct "affects" interstate commerce. Opponents nevertheless argue that the Commerce Clause power is limited to prohibiting conduct and does not authorize coercing affirmative conduct. But that limitation is nowhere to be found in the Commerce Clause itself, and, so far, no one has identified any constitutiona right with which the mandate interferes. So, under the existing precedent, I do not think it is a close call. Dhurtado
- NR143296
April 14, 2012 at 12:54am
Dhurtado, can you tell me a commerece clause case, that 1. said people not in commerce could be forced or mandated to enter into contracts they did not want to enter or 2. any commerce clause case that said it was ok to force or mandate people to enter into contacts they did not want to enter regardless of whether it could be said they were or were not in commerce?
- basman
April 14, 2012 at 2:12am
Jeff Frey writes: "For me the clinching fact is that the decision to go without insurance does in fact impact the cost of service for everyone else" But deciding you are above a 7-11 job and just want to stay on unemployment until a great job comes up carries a cost to the rest of society too. Does it not? DSimon writes: "In fact, it's the mandate itself that works against such excesses. " Hah. See Medicare. it has not responded as you think it would. The UK and other countries readily cuts services, benefits and rejects drugs that are paid for by Medicare without even a blink. Again, our government has zero experience cutting, unlike other countries. Cite a sizable example if you disagree.
- seattleeng
April 14, 2012 at 3:35am
NR writes: "If Seattle cannot construct an argument as to why it is unconstitutional, he has no business making that assertion." it's kind of like you designing a bridge. If you aren't an engineer, then your design doesn't matter. It won't get built. But, my lay argument would proceed as follows: 1) The things the government CAN do are enumerated 2) Our founding fathers could have written "do whatever the hell you want" but they didn't. They were very explicit. 3) The government has the power to tax us. That is not disputed. 4) The government has NEVER been able to force us to buy something from a private party. Even courts that agreed with ACA noted that the requirement forcing us to buy something form a private party was "unprecedented" 5) The mandate to buy private firearms was another issue completely related to defense. The Seaman argument was thoroughly debunked by Volokh. 6) If this survives scotus, then there is no limit to what the government can force us to buy. None. This results in unlimited power. 7) Since the founding fathers never intended the government to have unlimted power, this will not survive scotus. Hash away. Again, I'm not a lawyer. But hopefully NR enjoys the game a bit more.
- seattleeng
April 14, 2012 at 3:46am
Basman asks: “can you tell me a commerce clause case, that 1. said people not in commerce could be forced or mandated to enter into contracts they did not want to enter or 2. any commerce clause case that said it was ok to force or mandate people to enter into contacts they did not want to enter regardless of whether it could be said they were or were not in commerce?” First, as I have said, I don’t agree that the ACA affects people not in commerce. We are all in the healthcare market. Second, as I also have said, the Court is supposed to presume that federal legislation is constitutional. Therefore, it is the petitioners’ burden to present case law or argument showing that the ACA is beyond Congress’ commerce clause power. (Can you name any commerce clause cases that articulate the limits on the commerce power that you suggest?) That said, the two perhaps most famous commerce clause cases, Wickard and Raich (wheat and marijuana, respectively), come pretty close to recognizing a virtually unlimited power under the commerce clause. They both involved purely non-commercial activity (or lack thereof), and, particularly in the case of Raich (growing marijuana in one’s backyard for purely personal use), recognized an “effect” on interstate commerce that is so attenuated that it is hard to image anything that would not fall within the commerce clause power. To use a vegetable example (apropos the “broccoli” example), the Raich case implies that Congress could ban backyard tomato gardens for no reason other than that they would reduce demand for tomatoes in the commercial tomato market.. So there is nothing in the text of the commerce clause nor in any interpretive case law indicating that the commerce clause power stops at coercing individuals to enter into contracts. If I were to assume the burden of showing that there IS such a limitation, I would look to the Bill of Rights, particularly the due process clause of the 5th amendment, and use its penumbras to infer a right to freedom of contract. I probably would not meet much success though. It would require persuading the Court to resurrect the now-discredited Lochner-era cases. Dhurtado
- NR143296
April 14, 2012 at 9:25am
Valiant effort Seattle. I’m not an engineer, and so I wouldn’t assert that a particular bridge design is unsafe, for example, unless I at least had sufficient knowledge to explain why I think it is unsafe. I wouldn’t just naively assert that the design is unsafe because I think it will cost too much or because I don’t like the way it looks. I would need to distinguish the argument that it will cost too much from the argument that it is unsafe. Likewise with the ACA. We need to distinguish between arguments that it is bad policy, will cost too much, or “feels” like government overreach, on the one hand, from the question of whether it is unconstitutional, on the other hand. In any event, I will give you the respect of addressing your constitutional argument. (I am a lawyer, but that does not mean that I think a non-lawyer’s argument cannot have merit.) 1) The things the government CAN do are enumerated 2) Our founding fathers could have written "do whatever the hell you want" but they didn't. They were very explicit. It is true that Congress’ powers are enumerated in Article I, Section 8 of the Constitution. It is also true that Section 8 does not include the language “do whatever the hell you want.” However, the enumerated powers are not necessarily “very explicit.” The text of the commerce clause is: “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” That’s not very explicit. Subject to the constraints of the Bill of Rights, it authorizes Congress to do whatever the hell it wants as long as it constitutes regulating commerce “among the several States.” And in the 20th century, the Court interpreted the commerce clause to reach even non-commercial activity as long as it “affects” interstate commerce. That indeed is a very broad power, again, subject only to the constraints of the constitutional text itself and the Bill of Rights. 3) The government has the power to tax us. That is not disputed. Not sure why you have thrown this in here. No one seriously disagrees that Congress’ can use the taxing power to coerce individuals to pay money to the government, and thus to indirectly coerce individuals to purchase products and services from private parties, and even to purchase products and services for OTHER people. Indeed, it is unlikely that anyone would challenge Congress’ power to impose a tax that is used to subsidize individual purchases of health insurance, and then to provide a tax credit to persons who purchase insurance on the private market. That’s functionally the same as the ACA -- purchase insurance in the private market or pay a “penalty” to the IRS – and arguably no less coercive. So what’s the beef? We are going to get all exercised and cry “tyranny” simply because Congress may have invoked the wrong part of the Constitution as the source of the power to enact the ACA mandate? 4) The government has NEVER been able to force us to buy something from a private party. Even courts that agreed with ACA noted that the requirement forcing us to buy something form a private party was "unprecedented" I don’t have the historical knowledge with which to agree or disagree with that assertion. If it is true, it is true only of the federal government, not the state governments. So again to regard it as “tyranny” is a bit overwrought. More importantly, whether it is “unprecedented” is not constitutionally significant. The argument that because a law is unprecedented it is therefore unconstitutional is a logical fallacy. Social Security was unprecedented. Medicare was unprecedented. The Civil Rights Act was unprecedented. The FDA Act was unprecedented. The Telecommunications Act was unprecedented. Etc., etc., etc. See what I mean? 5) The mandate to buy private firearms was another issue completely related to defense. The Seaman argument was thoroughly debunked by Volokh. The Seaman argument does not necessarily support the argument that ACA Act is authorized under the commerce clause. But it does not defeat the argument either. It does not change anything I have said above. 6) If this survives scotus, then there is no limit to what the government can force us to buy. None. This results in unlimited power. It would not expand the power materially beyond the extent to which the Court has already expanded it. Under current Supreme Court precedent, the government already has the power to regulate any private conduct that even remotely affects interstate commerce. And there would be limits on what the government can force us to buy. (1) It would have to affect interstate commerce, not merely local commerce. (2) It would have to be democratically enacted. (3) It could not violate the Bill of Rights. And as you seem to acknowledge, even if the government could not do this under the commerce clause, it COULD do so under the taxing power. So wherein is the argument that it would expand the government’s power? 7) Since the founding fathers never intended the government to have unlimited power, this will not survive scotus. See my response to item 7). Dhurtado
- NR143296
April 14, 2012 at 11:17am
Basman- To your 04/3/12, 9:43 pm comment- That might be a fair way of framing the issue. But I think most of those who argue that the "mandate" is unconstitutional deny that healthcare is the relevant market. They want to narrowly define as the health INSURANCE market, which I think is highly disingenuous. Moreover, if your way of framing of the issue is correct, the Supreme Court has already resolved it. In Raich, it held the the commerce clause does in fact reach an individual that is not in commerce. Dhurtado
- NR143296
April 14, 2012 at 11:29am
NR, let's assume it DID pass. And minimum coverage was thusly defined by the government as being X, Y and Z, where X might be cancer treatment and care up to $2M, Y might be annual checkups, and Z might be end of life counseling, among other things. Perfectly reasonable first effort. Could a later government decide that A, B and C were getting added and must be paid for by all, including: 1) Crystal healing therapy, including aromatherapy, massage therapy and other holistic medicine 2) Medicinal marijuana coverage 3) Faith-based counseling Could these be added and required to be paid for by all? Since they can all show a benefit to health, I would say yes, why not. Could we later add: 1) Minimum housing allowance? In other words, if you can't afford a house, the ACA would pay for minimum housing. Shelter = life, therefore... 2) Minimum food allowance? Food = life, therefore... 3) Minimum vacation allowance. There are rumblings int he EU for minimum gov-paid vacations because of the alleged health benefits. Where do you think the line could be drawn? It seems that EVERYTHING could be mandated. And thus the power is unlimited.
- seattleeng
April 14, 2012 at 12:02pm
I'm enjoying reading Dhurtado's posts here. I'm not a lawyer, but I don't see how there could ever be any Constitutional distinction between real medicine and medical quackery. I don't understand why Seattle is even arguing in this direction. Plenty of bad ideas have been written into legislation over the history of this country, and that is an argument for electing better legislators, not that the Constitution could be a shield against all possible misguided laws. Likewise, given that we all agree the government has the power to tax, it clearly could impose taxes on everyone and use that money to provide minimum housing, food and vacation allowances for all. So again I don't see how this has any relevance to the Constitutionality of the ACA. Given that the government ALREADY has the power to do this, debating the hypothetical question of whether or not it could ALSO do this through a health care program seems pointless to me.
- JEFF FREY
April 14, 2012 at 12:49pm
Jeff, yes, the government has the power to tax. But getting the taxes increased is a monumental effort as we've all watched over the last few years. The citizenry would never stand for taxes that would give away all the things noted for free. However, voting to require it in a mandatory health care plan that one must purchase is a different matter altogether. Do you think progressive in san francisco that currently seek out naturopathy doctors will demand those doctors are covered by a baseline insurance plan? Seattle currently requires (one of two states) that all plans offered provide naturopathy coverage. And we know that progressive absolutely adore pot as a treatment for everything that hurts. SEarch on "san francisco"and "crystal therapy" and you'll see there are a lot of progressive types that rely on crystals to help their healing. And studies will indeed show an improvement here, placebo or not. Bit by bit the coverages for all this wacko stuff will become mandatory, mark my words. So, make a case why we should NOT make aromatherapy mandatory for baseline insurance coverage. It is so valuable to so many people, and it's less costly than conventional treatments for many ailments. And studies show it has a massively beneficial impact on wellbeing. Your response should be interesting.
- seattleeng
April 14, 2012 at 1:11pm
I'm not sure how many times I should keep saying the same thing, Seattle, before I give up an conclude that you're not willing to listen. The power under the commerce, particularly as it has been construed by the Court already, is indeed very broad. But it is not limitless. It is constrained by the Bill of Rights and by the democratic process. For example, compelling someone to purchase or undergo faith-based counseling would violate the First Amendment. Dhurtado
- NR143296
April 14, 2012 at 1:32pm
Jeff can speak for himself, of course, by why should he feel constrained to make that argument at all? You are posing a policy question, not a constitutional question. Where has Jeff made the argument that crystal therapy or any other particular therapy should be covered by insurance policies? Dhurtado
- NR143296
April 14, 2012 at 1:39pm
"We'll be like Europe, all wondering when the government can give us more stuff. Everyone sitting around waiting for their next vacation." The "stuff" that the government is giving them (e.g. education, effective mass transit etc) is "stuff" that their taxes pay for, seattle. And by many measures, "everyone" is working more productively than we do in the U.S. while waiting for their vacation (otherwise known as "life").
- ironyroad
April 14, 2012 at 1:51pm
Dhurtado: ...First, as I have said, I don’t agree that the ACA affects people not in commerce. We are all in the healthcare market... You may not agree. I may not agree. But that's the foundational issue at the very essence of the challengers' case insofar as the volitionally uninsured are concerned. It's interesting to moot the arguments pro and con here perhaps, but they are to no point that I'm making. It's a real, live, open issue as far as SCOTUS is concerned, or at least as far as 3-5 of its judges are. If those uninsured are held to be in commerce then it's game over, imho. The mandates will be upheld. But if they are not held to be in commerce then that's a different colored horse. What's troubling 5 of the judges is precisely the assertion that the federal government has under the commerce clause unlimited power. And if the conservatives majority prevails it will articulate a limiting principle I'd guess on the idea of limited federal government and on the activity inactivity distinction you think is sophistic. Re the government under the commerce clause reaching people not in commerce, I agree that it can as was part of the essential point in the marijuana case. But both in that case and in the wheat case, people were told what they could not do. Just as the legal test up here for a mandatory or positive injunction in normal civil litigation is more onerous than for a negative injunction, just as there are all kinds of strictures on the granting of specific perfromance in contract cases, 3-5 judges are pondering, or were, in the context of ACA, the strength of that activity inactivity distinction, the one that a few lower court appellate judges ruled was meaningful. Some of the 3-5 think in fact the issue is one of first impression: mandating people not in commerce to enter commerce by way of being obliged to purchase contracts of insurance they don't want. These are real and open issues to 3-5 of the judges, all other analyses to the side. The decision on that question finally turns on the gray axis where law and politics merge together in a blurry way and that ultimately gets expressed in legal reasoning. And, to be trite, thereafter, as I've noted, commerce clause jurisprudence will be affected by the ACA result. And it will be seen as expansive or limited by the "limiting principle" the court articulates. We can both foresee the content of that particular limit should it become part of commerce clause law. No?
- basman
April 14, 2012 at 1:53pm
Exactly Dhurt -- seattle tried that one on me a couple of weeks ago with "aromatherapy." He doesn't seem to understand the difference between constitutional questions (can we do it?), political questions (do we want to do it?) and policy questions (what should be covered by "it"?)
- ironyroad
April 14, 2012 at 1:53pm
P.S. the health care/health care insurance market distinction may be disingenuous but it's a nice product of good lawyering in trying to drive the not in commerce point. I suspect you and I in (for me anyway) less august cases have advanced similar types of distinctions in championing the interests of those who we were litigating for.
- basman
April 14, 2012 at 2:08pm
Hey Ironyroad, I'm still waiting for an "Exactly Basman." (:-)
- basman
April 14, 2012 at 2:10pm
What I really want to know is, who is Michelle Heaton and why does TNR think I would care that she has just given birth to a baby girl? Please stop the annoying videos on auto-play....
- JEFF FREY
April 14, 2012 at 2:53pm
Are you serious, Seattle? If a future administration inserts an absolutely ridiculous mandate into the comprehensive health care package, and a majority of people oppose it, Congress will strip it out. They tried to do that with contraception, but it didn't work because a majority supports access to contraception and did not buy the "religious freedom" claim. One might get the impression that you think the Constitution should prohibit passage of any law or policy you personally don't like.
- JEFF FREY
April 14, 2012 at 3:03pm
basman I think a person familiar with U.S. Constitutional law should be your advisor. On the issue of in or out of commerce, here is the seminal Supreme Court case on the issue Wickard v. Filburn: Doesn't this address the issue?
- Nusholtz
April 14, 2012 at 3:11pm
Exactly basman (will that do?). Here's my non-lawyerly take on the "not in commerce" claim. First of all, as I have said before, I don't buy the claim that people who choose not to purchase health insurance are not in the health care market. But let's suppose that enough justices do buy it. What then? Let's take as given that the mandate and the requirement for insurance companies to accept all comers, regardless of pre-existing conditions, are linked. I believe that all sides in court agreed on this. (Although this appears to be a matter of policy, not a Constitutional issue). Even the opponents of the law agreed that the government could mandate that everyone has health insurance as of the moment they present themselves (or are wheeled in, unconscious) for health care services. Let's assume they are conscious, because if they are not they clearly could not act on their own behalf. Without the present mandate and requirements on insurance companies that go hand in hand, the sick/injured person would be unable to purchase insurance as they walk in the door, so as a matter of practical policy they could only satisfy the clearly Constitutional form of the mandate if they had made the purchase earlier. Thus it seems to me that the only difference between this alternate version of the mandate and the present mandate written into the ACA is really a matter of policy -- a matter of timing of purchase. The Supreme Court should be keeping its nose out of matter that are really matters of policy.
- JEFF FREY
April 14, 2012 at 3:18pm
Give it a rest Nusholtz, the guy I talked to wasn't my advisor or a resource. He's just a friend vastly smarter than most who agreed with me on my take that there's no correct, necessary or logical outcome on the in commerce question. I mentioned it anecdotally, not as authority for anything. Legal resolution will be a judgment driven on the gray axis where law blurrily merges with ideology and political predilection set out in legal reasoning, as I've said many a time. What you cite may argued by one side but it doesn't frame or resolve the fundamental issue of, as the argument goes, people being inactive. Your cite turns on the word "activity" and that's one way the challengers distinguish Wickard and the way some lower appellate judges have in ruling the mandates unlawful. Jeff, with my cosmic camera I saw you cross your fingers when you wrote that.
- basman
April 14, 2012 at 4:41pm
basman I just question the virtue of obtaining an opinion on U.S. constitutional law from a Canadian Litigator, as if that helps in any way. On the legal issue. I just keep saying, it is not activity or inactivity, it is substantial impact. And if inactivity produces a substantial impact, the Supreme Court has said it can be regulated under the Commerce Clause. And if a lot of healthy people do not purchase insurance, it has a substantial impact on the health insurance market.
- Nusholtz
April 14, 2012 at 5:05pm
In terms of the Supreme Court, Itzik, you are right -- there is a demonstrated willingness to make radical decisions in order to advance a right-wing political agenda. So we are all crossing our fingers. In more general terms, you are probably right as well, although I am interested in your legal view of my argument. I have to do more crossing of fingers in the legal realm than in my own -- the sort of reasoning and argumentation I do for a living does not depend on textual interpretation.
- JEFF FREY
April 14, 2012 at 5:17pm
"Exactly basman!" You don't want to know what I crossed when I wrote that :) The exclamation point comes no extra cost.
- ironyroad
April 14, 2012 at 5:53pm
comes AT no extra cost
- ironyroad
April 14, 2012 at 5:54pm
Jeff Frey: "Are you serious, Seattle? If a future administration inserts an absolutely ridiculous mandate into the comprehensive health care package, and a majority of people oppose it, Congress will strip it out. " Your assertion that common sense will rule out is insane. March 26 2012 CBS/NYT poll says 47% oppose the ACA while 36% approve. So, a majority oppose it. And yet here we are. "They tried to do that with contraception, but it didn't work because a majority supports access to contraception and did not buy the "religious freedom" claim. " Feb 15 2012 Rasmussen reports 39% of likely voters believe the US gov should require church or religious organizations to provide contraceptives, while 50% disagree. So, congress is currently acting against majority interests, are they not? So your assertion that is something is not popular that it will be stripped out is flat our wrong. So, second request: Why is crystal therapy ridiculous? Why should baseline health care NOT pay for it? It gives massive benefits to those that rely on it. How can you be so cold-hearted to not let people enjoy those benefits? There are a bunch of progressive types in San Francisco right now that believe crystal therapy SHOULD be part of ACA. And there are a bunch of progressive types in San Francisco that believe pot should be part of ACA. Don't be a coward. Address the question head on instead of relying on "that's ridiculous"
- seattleeng
April 14, 2012 at 7:21pm
Irony writes: "He doesn't seem to understand the difference between constitutional questions (can we do it?), political questions (do we want to do it?) and policy questions (what should be covered by "it"?)" There was a time when I really felt that folks would do the right thing in this country. And then you realize how many are just grabbing whatever they can from the government. That same mentality has absolutely screwed Europe. It is their undoing. Irony writes: "The "stuff" that the government is giving them (e.g. education, effective mass transit etc) is "stuff" that their taxes pay for, seattle." But there is a big difference. They tax the crap out of the working poor to pay for that stuff. We do not. Big, big difference. If our asked our working poor if they'd like to be taxed at the same rate for the same stuff, the answer would be an overwhelming "no" Heck, our working poor MAKE money off the government today.
- seattleeng
April 14, 2012 at 7:27pm
And don't forget, irony, on average you've been a lot better off to be a middle class american over the last 30 years than a middle class European. In just about every measurable metric you might dream up.
- seattleeng
April 14, 2012 at 7:27pm
I've been both, and it's difficult to draw an exact comparison. There are definitely differences but they play out in unexpected ways depending on how you calculate "better off" and what you exclude or include -- and there are massive differences between the countries too, of course. However, I do notice that they are not racing to introduce our health care system there (anywhere, as far as I can see).
- ironyroad
April 14, 2012 at 7:45pm
"Mismeasuring Our Lives" by Joseph Stiglitz et al., makes the points there are metrics in which Europeans have done better as in leisure, etc. The French middle class did really well in the metrics the authors came up with. The problem with the slippery slope argument is that it is unprovable and can not be refuted. i.e. There is nothing Constitutional stopping the Congress from creating a flat 100% marginal rate for the income tax. There is also nothing to stop Congress from regulating commerce to make it so that each state had to be its own food autarky by banning interstate food shipments. Why don't they happen? Federalist X should show why these things would be unlikely to happen. I really doubt a crystal healing mandate could happen because there would be enough of a counterveiling force to outnumber it. The insurance companies and their huge lobbyists would demand that they not have to shell out the money for this. That should overpower any stereo-typical San Fran. hippies demanding it.
- MikeB.
April 14, 2012 at 8:54pm
Basman- In response to your post of 1:53 pm EDT- Perhaps you are not carefully reading my posts. I said that that I believe the more compelling argument is that the relevant market is healthcare, as opposed to merely health insurance, but then I assumed for the sake of discussion that the relevant market is health insurance, such that the question on the table is whether the power of the commerce clause reaches the conduct of people who are not in the relevant sector of commerce. I then pointed out to you that the Supreme Court has already answered that question in Raich, in which it held that a person who was not in the commercial market for marijuana (for medicinal use) could be prohibited from growing marijuana in their own back yard for personal use. Perhaps one could split hairs about the distinction between a “mandatory” regulation and a prohibitory regulation. But neither the text of the commerce clause nor any Supreme Court precedent articulates such a distinction. In light of the presumption of constitutionality to be afforded federal legislation, a limiting principle (mandatory vs. prohibitory) that finds no support in the constitutional text or in precedent seems a very thin reed upon which to overturn the mandate. The remainder of your post deals with what the Court might actually do. My argument that the mandate is constitutional has nothing to do with how the Court might actually rule. But any ruling based on the notion of “limited government” and the activity/inactivity distinction would be completely arbitrary, as it finds no support in either constitutional text or precedent. You say, “What's troubling 5 of the judges is precisely the assertion that the federal government has under the commerce clause unlimited power.” There is no such assertion. To repeat myself once again, there are at least two limiting factors: (1) that what is regulated must at least affect interstate commerce, however elastic that limitation might be; and (2) the bill of rights. Dhurtado
- NR143296
April 14, 2012 at 8:54pm
BTW, The mandate is the most conservative point of this and should be something Seattle supports. It is Heritage Foundation created! It is all about personal responsibility. I mean there might be someone in Africa named NR right now who would be demanding health care without a mandate :) (I thought I would bring up this construct before he made his inevitable entry.)
- MikeB.
April 14, 2012 at 8:57pm
Basman- In response to your 2:08 pm EST post, the Justices are not supposed to find clever. sohistic arguments to advocate a position. They are supposed to uphold a federal statute unless a petitioner can present a compelling case that a statute is unconstitutional. Moreover, I would like to think I do not advance disingenous arguments even in litigation. The propensity to do that is a bane of litigation in America. :-) Dhurtado
- NR143296
April 14, 2012 at 9:01pm
In re: polling of ACA If you look at the polling for ACA it is like the polling for most things in this country. It is like the polling of Tea Party supporters who don't want Medicare, Social Security, or Defense cut, but think that foriegn aid can be cut and will do away with the deficit. Most people like the goodies...They like the pre-existing condition rules, etc. They don't want the medicine though. The mandate is the medicine.
- MikeB.
April 14, 2012 at 9:08pm
MikeB: "There is nothing Constitutional stopping the Congress from creating a flat 100% marginal rate for the income tax. There is also nothing to stop Congress from regulating commerce to make it so that each state had to be its own food autarky by banning interstate food shipments." Yes, there is: It is the natural ebb and flow of politics. In all the years, with all the fighting, things like taxes have remained relatively constant. +/-2% over the last 40 years. Thnk about that. From the super high rates of CArter and Clinton, to the very lowest of Reagan and Bush. The effective tax rates have only swung a few %. But taxes are a tangible where you can easily see a number. And it's easy to hold leaders accountable for that number. What about things that are intangible, where you cannot readily see a number? Take, for example, welfare. There are hundreds of programs, spanning countless budget line items, totaling now around around $1T dollars. Result: It has grown uncontrollably. Each year, everyone says "Hey a bit more in food stamps would be nice, wouldn't it?" and it gets tagged onto whatever bill is currently kicking around. Nobody wants to the bad guy, and so it sails through. Now, look at ACA. What is baseline coverage? It is something the government does not pay for. They GIVE it to people. it is a gift. Or at least they want you to think that. Why would thing NOT get added to ACA just like welfare? And doubly so, because the government isn't paying a dime for this. They view added expanded services as a favor to their constituents. Want to make the hippies happy? Add pot coverage. Want to make the mommies happy? Add baby sitting. Want to the make the dads happy? Add Viagra. Want to make the LGBT happy? Add sex change operations. Want to make the 20-somethings happy (men and women) add breast augmentation. Not a dime of this comes from the federal governmetn. Why would they NOT do this? You do not see how corrosive this will become? To convince me, provide an example area in which our government has demonstrated exceptional restrain in expanding services when there is zero budget accountability. That does not exist, because it's akin to a drug user working in a pharmacy.
- seattleeng
April 14, 2012 at 11:49pm
From Pelosi: “One of the great pieces of unfinished business is high-quality child care; I wonder why we just can’t do that,” The American Massage Therapy Association is pushing for licensure and legislation in all states to ensure that massage can become eligible for coverage by ACA. And look at what the states have done with their minimum requirements. As noted, acupuncture, massage therapy, aromatherapy are all required in some states. This is the biggest reason that state lines cannot be crossed. MA, for example, has so many "base" requirements to their minimum insurance that their coverage is $8600 per year. While Utah has so few requirements for their minimum insurnace that their base coverage is $1100. Now, if you are thinking of ACA offering a baseline minimum such as Utah, then perphaps we're closer than I thought. But I'll bet everyone here is LOVING the idea of a minimum closer to MA. Are you not? Expanding more and more every year. Adding in child care and pot. And the next thing you know, the minimum plan is $12,000 per year. Gold plated. For everyone. Because you love big government. Admit it.
- seattleeng
April 15, 2012 at 12:07am
seattleeng, Below is a short column in the latest Time magazine about tax whiners like you. Dare you read it? You say that people who complain about the rich not paying enough taxes are jealous of them (not this boy). But you are jealous of the poor! While you have it great in the greatest country in history! Stop whining and enjoy your good fortune! ******** SHUT UP AND PAY, PLEASE By Bill Saporito We're nearing the IRS filing deadline, which means the tax whiners are in full cry. First up is the Tax Foundation, which annually declares a Tax Freedom Day--the day our national earnings to date will cover our annual tax bill. (Tax Freedom Day 2012 falls on April 17, which is also tax-filing day.) "This year, Americans will pay $2.62 trillion in federal taxes and $1.42 trillion in state-local taxes out of $13.86 trillion in income, for a 29.2% tax bill," said Tax Foundation economist-whiner Will McBride. "That means taxpayers will pay more in taxes in 2012 than they will spend on food, clothing and housing combined." Well, of course we will. An F-35 costs more than a pair of Dockers. You can't run a discount court system to uphold our freedoms. Our tax rates are so oppressive that the number of millionaires increased to 3.1 million in 2010--up 240,000 from the prior year and exceeding the 2007 prerecession figure, according to the 2011 World Wealth Report from Merrill Lynch and Capgemini. May they each buy another house and a couple more cars. And some magazines. I am absolutely thrilled to pay income taxes. It's a sure indication that I have income; not everyone is that fortunate. Since it's an election year, naturally there's a fight about tax rates. President Obama wants to apply the Buffett rule to raise taxes on people who earn $1 million or more. Fine by me; it would help cut the deficit. Mitt Romney, whose tax rate was 15.4% last year, would rather cut spending than force his fellow millionaires to cough up more dough. When it comes to corporate taxes, you can always count on whining from the U.S. Chamber of Commerce. The chamber won't be satisfied until the federal tax rate is zero, the EPA is dead and our children are back working in the coal mines at market rates. "In just a few days, the United States will hold the dubious distinction of having the highest corporate tax rate (39%) in the world," cried the chamber's executive vice president of whining about government policy, Bruce Josten. He neglected to mention that U.S. companies' effective tax rate--what they actually pay--is something on the order of 12%. I paid twice that last year. ExxonMobil has been paying an effective tax rate under 18%. Last year it earned $41 billion. Exxon must not find the current code all that taxing. Our world-beating rate gets blamed for a lot of things. "Yet Americans still wonder why businesses are sending our jobs overseas," observed Malcolm Out Loud, some guy from Fox News. Did I mention which country has the lowest tax rate? Ireland. The Emerald Isle of disaster. How are things in dear old Donegal? In recession. Again. Another country that has among the lowest tax rates is Iceland, the frozen island of disaster. Malcolm must think we've been outsourcing jobs to Reykjavk. And what country shares Iceland's rank? Greece! Your witness, Malcolm. Now let's look at the countries with the highest rates: the U.S., Japan, France, Belgium and Germany, Europe's leading economy. The Germans have indeed lowered their statutory corporate rate from 39% to 30% over the past 10 years. But the Germans collect at the 30% rate. Just imagine the lobbying that would commence if Congress targeted the tax loopholes that Chamber of Commerce industries have carved out for themselves. The whiners are right that the tax code is ridiculously complex. I'm all for tax efficiency and efficient government. But I tend to look at Tax Freedom Day from a different perspective. To me, it's Tax Freebie Day. We live in a five-star resort of a country, and people whine about having to pay for the umbrella drinks. But think about value for money. The real deal with personal taxes in Club USA is that you buy one day and get three at no extra charge. We even have a National Weather Service so we know how to dress in the morning. If this got any better, they'd serve me orange juice too. Every day of the year I live in the richest country in the history of the world, one that offers a free basic education and a billion cable channels. It has baseball. We are protected by a kick-ass military. And after April 17, it's all free? Go ahead, raise my taxes. Or lower them if you want. Just sign me up for another year.
- magboy47.
April 15, 2012 at 12:13am
Let's consider a hypothetical, Seattle. Every Republican will campaign on this platform: vote for me, and I will make sure that insurance companies can deny you coverage again for pre-exisiting conditions. Do you think that campaign message will work? Of course not! Yes, the ACA in general gets moderately negative polling numbers, but many specific provisions are quite popular. Which means that the poll numbers are going to vary a lot depending on how the question is asked, and your complaint is meaningless. But if some element of the mandated coverage is truly unpopular enough, Congress can vote it out. Those are policy issues. You might then argue that the Senate cannot agree to blow its nose without 60 votes, but surely even you would have to agree that the actions of the Republican minority over the entirety of the Obama administration have something to do with that dysfunction.
- JEFF FREY
April 15, 2012 at 1:14am
In fact it should not be all that difficult to get 60 votes for a fairly reasonable policy, under normal conditions. The senate was designed so that its members would enjoy a certain kind of independence that would play against party loyalties. But these are not normal conditions: try getting GOP support for something rational -- you know, like a pragmatic solution to a national issue -- these days. If anyone came on board, the conservative base would hang them high.
- ironyroad
April 15, 2012 at 2:03am
Well, Seatle you didn't actually address my point that there is nothing UNCONSTITUTIONAL about the scenarios that I said which is the point. Your "natural ebb and flow" of politics covers this as well, particularily that there is a very powerful (and let's face it, pretty useless) industry that would demand certain things like not having to shell out money for massages. This will certainly overpower the vast hippie lobby. But from the rest of what you wrote, it seems you have more of a problem with the whole idea of liberal democratic representative government. All these slippery slope arguments could be used on anything. Government builds roads. Why not have the government buy everyone a car, right? Therefore the government should not build roads because the next stop is it will buy everyone a car... And you have a weird idea of the political power of hippies. "Because you love big government. Admit it." Oh the horror and also completely meaningless. This is talk radio level of discourse.
- MikeB.
April 15, 2012 at 9:01am
You need big government for some things, small government for others, and for much you don't need government at all. But taking the last clause and making it a kind of absolute philosophy (and often hypocritically) for national affairs in general is the kind of nihilism which has taken over the Republican Party.
- ironyroad
April 15, 2012 at 11:31am
Jeff writes: "Do you think that campaign message will work?" Tell me, how does it work for the candidate that promises to cut medicare? Who is the last successful candidate that has done OK by advocating we cut medicare? EVERY SINGLE PERSON agrees Medicare is unsustainable and needs to be cut. But nobody will do it. Ryan has tried, and OBama runs commercials of him dumping an old person off a cliff. Your argument it total crap unless you can quickly come up with an existence proof of our leaders using good judgement at any time in history when it comes to social programs. ACA will be Medicare on steroids: More services every year. And why not? Because congress never sees the bill. Think about that. They get love from constituents when the deliver more services AND they never see the bill. Do you know how dangerous this is? They will keep adding services, and keep blaming "greedy insurers" for the cost going up. This has been the formula to date, has it not? Jeff writes: "But if some element of the mandated coverage is truly unpopular enough, Congress can vote it out. Those are policy issues." Again, cite a few examples of where this has happened and you might convince me. But I won't hold my breath. Magboy writes: "I am absolutely thrilled to pay income taxes. It's a sure indication that I have income; not everyone is that fortunate." I would gladly pay more if the government wasn't wasting money hand over fist. Fix that, and then let's talk. But asking a coke addict the guard the bag of code is a bit daft, isn't it? Look at helping the poor. Today, I need to earn about $1.30 in order to give the government $1, due to regulatory overhead. After I give the government that dollar, then they manage to get just $0.60 to a poor person. So, I earn $1.30, the poor person gets $0.60. You think this is good? If you want to know where that gap in the middle goes, it goes to gov employee jobs and pensions, which are much more lavish than private sector. Yet another problem. Anyone that tells you they don't mind paying taxes is really telling you they are a clueless rube that doesn't understand numbers. If a charity had the "giving ratio" I note above, they'd be widely castigated in the press, and rightly so. Don't gladly accept such sloth and waste. It makes you look uninformed. Demand better. Mike writes: "Seatle you didn't actually address my point that there is nothing UNCONSTITUTIONAL about the scenarios that I said which is the point." I certainty did. I said that the ebb and flow (or balance of powers) would not permit it. And the citizenry wouldn't' stand for it. And in almost100 years since the income tax was permitted, that has been correct. Now, why is this correct? Because congress knows that if they took all your money, no matter how much you earned, that a huge % of the population would just quit working, including the most productive. Everything would fall apart. We've seen this before. The countries fell apart. it's called socialism or slavery, depending on how ruthless the government is. So, you are correct. but your statement is ridiculous. As ridiculous as saying "If congress voted to give everyone $10M dollars, then we'd all be livin' large".
- seattleeng
April 15, 2012 at 11:41am
Interesting analysis of Raich by Randy Barnett that I just saw this morning though it was written last March on distinguishing Raich and Wickard: http://volokh.com/2012/03/09/understanding-justice-scalias-concurring-opinion-in-raich/ One point Barnett makes is that Scalia at least "substantially affects" for the actvity of those not in commerce within the Necessary and Proper Clause and not the Commerce Clause. This is article is linked to in an exchange between Barnett and Lawrence Lessig as to the implications for SCOTUS's reputation if it strikes down the mandates. If anyone wants a link to that exchange work back from Lessig here: http://www.theatlantic.com/national/archive/2012/04/obamacare-and-the-supreme-court-more-on-the-rule-of-politics/255912/
- basman
April 15, 2012 at 12:32pm
There is some good data again over at Volokh, with a good point made. Today, a 20-something that wants to guard against a life changing event such as cancer or getting hit buy a bus would do that with a catastrophic care policy. These policies have massive deductibles. But, if you are hit by a bus, your total cost exposure might be $5,000, which is well within the ability for anyone with 6 months savings set aside to cover (and that should be everyone over 20 in this country). Beyond that amount, insurance covers everything. Now, the cost to buy a catastrophic care policy today for a 20-something is $420/year. That is how much a 20-something must spend to ensure they never become a burden to the larger society (which is what everyone here is breathlessly worried about). But ACA does not allow a catastrophic care policy to be purchased. Instead, they only permit a "bronze" plan, which the CBO estimates will cost between $4500 and $5500. This bronze plan covers mandatories including contraception, newborn care, physical therapy, pediatric oral care, etc. So, this is really the rub in all this and something that the scotus must heavily consider: A responsible 20-something that has no need for these services will be forced to buy something they do not want or need. And the cost for that is $5000. As the author at Volokh points out, this is nothing more than a subsidy required of the young to be transferred to the old. As if we haven't done enough of that already. Those that are bleating about really need to think very hard about this. This isn't about getting hit by a bus and being a burden on society. The larger question here is can the government require you to spend $5000 for something you do not want or need? And if they can do that here, where are the limits? volokh.com/2012/04/12/the-myth-that-the-individual-mandate-addresses-cost-shifting-by-the-uninsured-part-2-bronze-plans-are-not-the-same-as-catastrophic-coverage/ don't eat the link. don't eat the link. don't eat the link. don't eat the link. don't eat the link. don't eat the link. don't eat the link. don't eat the link. don't eat the link. don't eat the link.
- seattleeng
April 15, 2012 at 12:36pm
Elhauge makes a good argument, but it's not case closed. Regarding the militia's weapons, it was traditional for militiamen to supply their own weapons--which isn't to say Congress isn't permitted to do it for them. Also, just because Congress passed a law doesn't mean it fit the text of the constitution; these same people passed the The Alien and Sedition Acts.
- karlwk
April 15, 2012 at 2:26pm
SeattleEng "The larger question here is can the government require you to spend $5000 for something you do not want or need?" You mean, like the government having us to pay for that stupid War in Iraq? Does paying with loss of life in the militiary count as payment? Who needs that? How about the government having us pay for the plane and someone to assist former President Bush to fly a plane onto the flight deck and stand under a sign that said "Mission accomplished"? You "really need to think very hard about this."
- Nusholtz
April 15, 2012 at 5:21pm
You mean, like the government having us to pay for that stupid War in Iraq? That was indeed a badly done venture, but military spending is clearly covered in the constitution.
- karlwk
April 15, 2012 at 6:11pm
Last I checked, Republicans in the 2010 elections were demagoguing over the very modest cuts to Medicare contained in the ACA. Then, soon after the elections they went back to demanding larger cuts in Medicare. This works because too much of the citizenry fail to pay attention. That is a flaw in our democracy, but not a Constitutional issue. No Constitution can protect a democracy from all possible stupid, selfish and shortsighted actions of the citizens. So please raise a Constitutional issue or drop it. I did want to comment on this further proof that Seattleeng lives in an alternate reality: "But, if you are hit by a bus, your total cost exposure might be $5,000, which is well within the ability for anyone with 6 months savings set aside to cover (and that should be everyone over 20 in this country)." I suppose your parents paid for your college and your trust fund provided you the additional savings? This is just a total load of crap and does not reflect the reality of life for the majority of Americans. But it all seems so simple if you pretend it works that way.
- JEFF FREY
April 15, 2012 at 8:09pm
Karlwk -- yes, you are right, but Nusholtz did give a valid answer to Seattle's "larger question". Nothing in the Constitution automatically prevents the government from making you spend money for things you don't want or need, or assures that your tax dollars will only go for things you want or need. The "larger question" may reflect Seattle's policy preference, but that's it.
- JEFF FREY
April 15, 2012 at 8:13pm
Karlwk I agree with JEFF FREY who agrees with me. If the power to wage war includes the power to make us pay for a war we don't want or need, why wouldn't the commerce clause include the power to make us pay for something we don't want or need?
- Nusholtz
April 15, 2012 at 8:35pm
Nutz writes: "You "really need to think very hard about this." I have. I think it is unfair for a 20-something to be saddled with a $5000 annual expense if they have already taken measures to ensure they aren't going to become a burden to society. That is a very, very steep bill to foist upon a person that is just getting his or her footing in this world. And I also note that nobody here has made a convincing case that the government will show a shred of restraint in adding "features" to the bronze plan. Again, to convince me, just show me a place where the gov has shown a SHRED of restraint. Nobody can think of any previous example? Nothing? And you expect me to believe they suddenly will, when they won't even have to pay for the things they add? And in an ultimate fit of frustration resulting from being check-mated, Nutz blurts out "Oh yeah?! But what about Iraq! Bush sucks!" Completely ignoring what I said at the top of this thread: The government can do just about anything they wish wrt the military. That isn't under debate by any party. This includes making everyone buy guns and sending men to die in a war. I hope scotus sends this back to the drawing board, and then congress can work on a BIPARTISAN plan that passes with normal procedures, and relies on carrots, instead of sticks, to make folks WANT to join. One can dream. I hope it's 3 pages. Max. And premised on the fact that anyone can seek out any level of coverage they wish. Pre-existing conditions cannot be considered. And the longer you have a policy, the better the coverage gets. This is the carrot that will prevent folks from mooching.
- seattleeng
April 15, 2012 at 8:44pm
Jeff writes: "I suppose your parents paid for your college and your trust fund provided you the additional savings" Nope. Cooked at a Chili's restaurant while getting my engineering degree. Every financial person in the country will tell you that if you don't have 6 months of savings amassed to pay for emergencies, then you are a fool. Our grandparents certainly did. And yes, even a just-married short-order cook with a new wife can afford to save this. It's called priories. Of course, a tattoo and a smart phone with a $80/month data plan is a lot more exciting to the working poor today. But perhaps that is why they are the working poor.
- seattleeng
April 15, 2012 at 8:48pm
SeatleOINK " writes I think it is unfair for a 20-something to be saddled with a $5000 annual expense if they have already taken measures to ensure they aren't going to become a burden to society. " How do they know they will not be a burden to society later on in life when it is too late? I think you are unfamiliar with the terms of the bill with regard to individuals who do not have employer provided health insurance. You are also overlooking the impact on business of lower cost health insurance from socializing the risk. I'm not so sure you have thought this through like you claim to have done, or if you have, you do not show it.
- Nusholtz
April 15, 2012 at 9:33pm
Nothing in the Constitution automatically prevents the government from making you spend money for things you don't want or need Other than the Tenth Amendment, which makes it clear that unless a power is specifically granted the feds, it is forbidden. why wouldn't the commerce clause include the power to make us pay for something we don't want or need Because the power to forbid a trade is not the same as requiring one to make a trade.
- karlwk
April 15, 2012 at 10:06pm
It is likely that only Basman will be interested in this post, if even he is interested in it. I appreciate his link to Professor Randy Barnett’s article attempting to show how the ACA case is distinguishable from the Raich (marijuana) case, and how Justice Scalia could easily distinguish the ACA case from the Raich case, even though he supported the Raich decision in a concurring opinion. First, I cannot resist commenting that Randy Barnett was my contracts professor at Northwestern in the early 90s. He is very smart, and he is the one of those, if not the one, who first brought credibility to the argument that the ACA mandate is unconstitutional. I was not aware that he was the petitioner’s counsel in Raich. That is very interesting. I also was unaware of the following: That Raich located the “substantial effects” (on interstate commerce) doctrine in the “necessary and proper” clause, rather than in the commerce clause itself. Barnett does not say it in his article, but he is implicitly assuming that the relevant market in the ACA case is health insurance (rather than healthcare). Otherwise, the invocation of the “necessary and proper” clause and the “substantial effects” doctrine would be unnecessary. The ACA mandate would involve regulating the conduct of people who are already in commerce, and therefore would be directly authorized under the commerce clause as a regulation of interstate commerce. As I have said, I think it is intellectually dishonest to assert that the health insurance market is distinct and severable from the healthcare market. And even if either conception is reasonable, proper judicial deference to the legislature, and the presumption of constitutionality, should lead the Court to conclude that the relevant market is healthcare and that the ACA mandate is authorized directly under the commerce clause. But I will assume Barnett’s premise that the ACA mandate involves regulating non-commercial conduct, and (briefly) analyze his argument from that premise. I believe Barnett would concede that, as with the activity involved in Raich, failure to purchase health insurance has a “substantial effect” on interstate commerce, even if that commerce is defined only as the health insurance market. But he argues that “substantial effect” is not enough to show that the regulation is either “necessary” or “proper.” That is so, he argues, because: “(a) such mandates are not necessary to carry into execution the regulation of the insurance companies and because (b) the unprecedented claim of power to impose a mandate to enter into contracts with private companies is highly improper.” Barnett argues that the mandate is not necessary to carry into execution the ACA because the ACA could actually be enforced without the mandate. The absence of the mandate might mean that premiums would skyrocket and make insurance unaffordable for large chunks of the population and/or cause insurance companies to fail, thus seriously undermining if not defeating the purpose of the legislation. But that is not enough, Barnett hypothesizes, to satisfy the “necessary” element of the “necessary and proper” clause. He argues that the mandate would be necessary only if the legislation could not be ENFORCED in the absence of the mandate. As far as I know, the Court has never promulgated an interpretation of “necessary” that narrow, and Barnett cites no case in which it does. In fact, though he claims that was the basis for the Raich holding (and I need to go back and scrutinize Raich), I don’t see how the prohibition of marijuana growth on private property for private use could be necessary to the ENFORCEMENT of laws prohibiting the sale of marijuana. The Court ruled in Raich that the necessary and proper clause could be used to expand the reach of the commerce clause to purely intra-state, non-commercial conduct, because ideologically it wanted the private growth and consumption of marijuana to be a federal crime. Now that the holding of Raich is coming back to bite them, and would justify the regulation of allegedly non-commercial conduct to implement the ACA, which Barnett, and he hopes, at least 5 justices oppose for political reasons, Barnett seeks to provide the Court with a basis for narrowing the interpretation of “necessary to carry into execution” in a way that it has not heretofore been narrowed. With regard to the “proper” element of “necessary and proper,” Barnett asserts that the ACA is “highly improper,” but largely demurs as to why. He acknowledges, as he must, that the mere fact that a regulation is unprecedented does not render it unconstitutional. But he nevertheless offers lack of precedent as the only real reason that he finds it “improper.” And to conclude that it is “unprecedented,” he doesn’t argue that the federal government has never before coerced affirmative conduct, as he could not in good faith do, but he again argues narrowly that the federal government has never before forced an individual to enter into a contract with a private party. Even so, he does not explain what, in addition to lack of precedent, makes coercion of entry into a private contract “improper” and thus unconstitutional. I suppose it his own personal intuition regarding the proper scope of federal power, and, he hopes, the intuition of at least 5 of the justices. But that is an extremely thin basis for overcoming the presumption of constitutionality, particularly where that intuition finds no support in the text of the commerce clause, the necessary and proper clause, or interpretive precedent. Dhurtado
- NR143296
April 15, 2012 at 10:57pm
Karlwk- The 10th Amendment does indeed say that "The powers not delegated to the United States by the Consitution ... are reserved to the States resspectively, or to the people." (The word "specifically does not appear in the 10th amendment.) The Constitution does delegate to Congress the power to regulate interstate commerce. So the question is what "regulate" commerce means. The commerce clause doesn't define "regulate" as the power only to "prohibit"commercial conduct rather than to "coerce" commercial conduct. It only says "regulate," which could encompass either or both mandates and prohibitions. So from where to you read into the commerce clause the limitation that it grants to power only to prohibit conduct? Dhurtado
- NR143296
April 15, 2012 at 11:35pm
Kudos for the Chilli's gig, seattle, but I can assure you that if you went to a state college then your education was subsidized by current and previous generations of taxpayers who made sure that you did not have to pay cost, because public investment in higher education was seen as a plus for our society. Even if you think it wasn't. What people believe, isn't always the case.
- ironyroad
April 16, 2012 at 1:34am
karlwk "Because the power to forbid a trade is not the same as requiring one to make a trade." Are you saying that under the Commerce Clause the federal government cannot require car companies to provide a certain bumper, or include a seat belt, or an air bag? Clearly those are expenses I assume you are calling "requiring one to make a trade."
- Nusholtz
April 16, 2012 at 8:33am
irony writes: "Kudos for the Chilli's gig, seattle, but I can assure you that if you went to a state college then your education was subsidized by current and previous generations of taxpayers who made sure that you did not have to pay cost, because public investment in higher education was seen as a plus for our society." Of course. And then I got a job, am working my way towards paying millionS (plural) in income tax over a lifetime, and will return the favor many times over. Just like every other west coast engineer.
- seattleeng
April 16, 2012 at 10:19am
Nutz writes: "Are you saying that under the Commerce Clause the federal government cannot require car companies to provide a certain bumper, or include a seat belt, or an air bag? Clearly those are expenses I assume you are calling "requiring one to make a trade." But the government isn't requiring you to buy these cars. Most states will allow homemade cars and heavily modified cars to be driven on the roads even though they fall far short of safety standards. Antique cars and dune buggies are two examples. In the case you cite, the government is saying "If a manufacturer wants to make a car for sale, then the car must have these safety features" I think even Ron Paul would find that reasonable. What is unreasonable is for the government to REQUIRE you to buy a car. Or health plan.
- seattleeng
April 16, 2012 at 10:27am
SeattleOINK! The Problem with your and Karlwk is that you alternate, without responding to my responses to your claims. You said government can't force you to pay for something you don't want or need. I asked, what about war? You said that was authorized by the constitution. I asked if the war clause authorizes it, why can't the commerce clause? Karlwk responded that there is a difference between forbidding a trade and compelling a trade. I asked about car companies being compelled to expend money in trade. And you say now, that we are not required to buy cars, but nobody ever said we are compelled to buy cars.
- Nusholtz
April 16, 2012 at 11:17am
seattleeng: "'DSimon writes: "In fact, it's the mandate itself that works against such excesses. "' "Hah. See Medicare. it has not responded as you think it would. The UK and other countries readily cuts services, benefits and rejects drugs that are paid for by Medicare without even a blink. "Again, our government has zero experience cutting, unlike other countries. Cite a sizable example if you disagree." Seattle, you wrote that government would endlessly expand required coverage to all sorts of frivolous treatment. I wrote that the political pressures of having everyone in the system would create incentives to control costs that would work against that. You responded with a non sequitur, that the UK does not cover benefits that are covered by Medicare. That doesn't respond to the point that it's unlikely that frivolous treatments would be covered. Moreover, we all know that Britain spends about half as much as we do on health care, and that other countries get the same results we do or better while still spending far less than we do. Again, I know you know these things because you said you've read T.R. Reid's The Healing Of America. We don't have to debate these hypotheticals in a vacuum. And we have done some cutting, such as $500 billion from Medicare Advantage. As for the rest, and as I wrote before, there isn't much of a political incentive to reduce costs unless everyone is in the system. Other countries have managed to do it. You don't point out any inherent reason why we can't do the same: cover effective treatments that will help drive down expenses without sacrificing outcomes.
- dsimon
April 16, 2012 at 11:42am
seattleeng: "I think it is unfair for a 20-something to be saddled with a $5000 annual expense if they have already taken measures to ensure they aren't going to become a burden to society. "That is a very, very steep bill to foist upon a person that is just getting his or her footing in this world." Except that if it's a real burden, that person gets a subsidy. Surely you know that's how the ACA works. All of our peer nations have managed to avoid this problem. "And I also note that nobody here has made a convincing case that the government will show a shred of restraint in adding 'features' to the bronze plan. Again, to convince me, just show me a place where the gov has shown a SHRED of restraint." Except I have: that all of our peer countries have managed to do so. There has been no reason provided why we can't do it too. And with a mandate, the political incentives will be to keep things reasonable, not excessive. "And you expect me to believe they suddenly will, when they won't even have to pay for the things they add?" As I wrote before, they will when more people have more of an interest in doing so. People in other countries are well aware that they "pay" for their "free" healthcare. "I hope scotus sends this back to the drawing board, and then congress can work on a BIPARTISAN plan that passes with normal procedures." Democrats tried and made compromise after compromise. The problem was Republican intransigence and a determination to have Obama fail--and that was before the midterm elections. Really, what could Democrats have proposed that would have gotten Republican votes other than near-complete capitulation? Even the Republican counterproposal did nothing to control costs and would have covered only about 3 million of the currently uninsured, according to the CBO. Most of the health care bill derived from Republican ideas. It was more conservative than what Nixon put forward. It was endorsed by former Republican Senate Leaders Bob Dole and Bill Frist. The lack of bipartisanship was derived from the Republican side of the aisle, so there was no cooperative result to be had. "I hope it's 3 pages. Max." Great: then write something. If it's so simple, we'd all be glad to take a look at it.
- dsimon
April 16, 2012 at 11:56am
seattleeng: "Again, to convince me, just show me a place where the gov has shown a SHRED of restraint." As Ezra Klein has pointed out, this argument goes nowhere fast. If it's true that our government has some inherent incapacity for reducing the growth of medical costs to some reasonable level, then we're going bankrupt no matter what plan is put in place. So every proposal has to have some assumption that some restraints will happen; otherwise, we're just dealing with budgetary nihilism.
- dsimon
April 16, 2012 at 1:46pm
DSimon writes: "Except that if it's a real burden, that person gets a subsidy." Yes, but only if it exceeds ~10% of your annual pay. So, forcing someone making $45K/year that is just starting their life and that is trying ot save for a house to spend $5K on an insurance policy is not at all trivial. Especially if that person has already determined they only need a $450 policy. Over 10 years, that is $50,000--a year of salary--you have forced them to spend. That's a nice down payment on a house, BTW. DSimon writes: "As Ezra Klein has pointed out, this argument goes nowhere fast. If it's true that our government has some inherent incapacity for reducing the growth of medical costs to some reasonable level, then we're going bankrupt no matter what plan is put in place. " Well, we ARE going bankrupt no matter what it seems. The world is full of generous governments that have led their people in bankruptcy. Even in US cities we are seeing this. So, we have an existence proof world wide that governments are fully capable of leading their people into bankruptcy and will break many social contracts as a result. And yet you hold out hope that in this ONE AREA they will get smart and drive down costs in spite of having no incentive to do so? Are you on drugs? Seriously? You cannot be so delusional can you? DSimon writes: "That doesn't respond to the point that it's unlikely that frivolous treatments would be covered." As I've asked several times now: Show me one place where the government has shown a shred of restraint WHEN they are footing the bill AND when they are not footing the bill. Our current government (D's and R's) are willfully driving the country in the ground with debt, while paying themselves record salaries and partying all over the country and world in shows of excess that are frankly sickening. DSimon writes: "Except I have: that all of our peer countries have managed to do so" They have solved the routine care case, but for anything more than a sore throat, they often deliver far inferior care to the old and/or very sick that we do in the US. Look at cancer survival rates across the general population. We handily beat them all. And then look at cancer survival rates among the old. It's not even funny how much better we are there. It really drives home just how QALY works. Too old? Cancer? That's a shame. Here. Have some pills. It'll ease the pain. DSimon writes: "Democrats tried and made compromise after compromise. The problem was Republican intransigence and a determination to have Obama fail--and that was before the midterm elections. " If "compromise after compromise" managed to attract just zero republican votes, then by definition it's not a compromise, is it? DSimon writes: "Great: then write something. If it's so simple, we'd all be glad to take a look at it." Not my job. But I've written many times the 4 or 5 core pillars that every single republican (and dem, I'd hope) would certainly embrace.
- seattleeng
April 16, 2012 at 3:01pm
Anyone who is truly not in commerce is not going to have to pay the shared responsibility payment (tax penalty), and the requirement to make that paymetn is the only enforcement mechanism for the individual mandate. 26 USCA 5000A(e)(2) exempts taxpayers with income below the filing threshhold. So the person living in the wilderness who is not in the mainstream economy isn't going to have the pay the penalty because that person's income is going to be below that threshhold.
- davisyen
April 16, 2012 at 4:49pm
"Well, we ARE going bankrupt no matter what it seems." Well, then why bother posting anything on this topic? Those who really believe that don't have anything further to write about. "They have solved the routine care case, but for anything more than a sore throat, they often deliver far inferior care to the old and/or very sick that we do in the US. Look at cancer survival rates across the general population. We handily beat them all." Where are you getting your stats? Perhaps you could provide a cite, because to my understanding that is simply not true. Not only do we not handily beat them all, but they beat us in many areas. If you have colorectal cancer, five year survival rates are better in Canada, Australia, and New Zealand. For kidney transplants, all of those countries plus Britain do better. And that's just among our English-speaking peers. http://www.nytimes.com/imagepages/2009/06/17/business/17leonhardt.graf01.ready.html As for inferior care for the old and sick, again I believe you've read The Healing of America and should know that life expectancy for people who have reached 60 is shorter here than in our peer nations. That's not conclusive, but it should be an indication that other nations are hardly abandoning their elderly. "If 'compromise after compromise' managed to attract just zero republican votes, then by definition it's not a compromise, is it?" No, it means that many Republicans were never negotiating in good faith. I think Grassley just about admitted it at one point. And it means that the bipartisan bill that you suggest was a fantasy not because Democrats wouldn't give but because Republicans never were serious about agreeing to anything--unless perhaps you could tell us what would have gotten serious numbers of votes without near-complete capitulation. "So, we have an existence proof world wide that governments are fully capable of leading their people into bankruptcy and will break many social contracts as a result. And yet you hold out hope that in this ONE AREA they will get smart and drive down costs in spite of having no incentive to do so?" We have plenty of existence proofs that governments will hold down health care spending when everyone is in the system so that there is a political incentive to do so. All of our peer nations have done it. And I still don't understand how it's possible to argue that governments will never get health care spending under control, and then make the (false) assertion that governments elsewhere have responded by cutting vital care and so deliver worse outcomes than our system. Don't those two contradict each other? "Not my job." Come on, it's three pages. Don't cop out on us. The nation is depending on you.
- dsimon
April 16, 2012 at 5:26pm
"Just like every other west coast engineer." Well seattle, I'm pleased to hear that west coast engineers earn big enough salaries to pay all that tax. In any case, I take it that what you're saying is that you got a great bargain earlier in life, a degree from a state school than enabled you to land well-paying and interesting work afterwards. And there's nothing wrong with that.
- ironyroad
April 16, 2012 at 6:49pm
seattleeng: " forcing someone making $45K/year that is just starting their life and that is trying ot save for a house to spend $5K on an insurance policy is not at all trivial." Might want to check your numbers. According to Kaiser's insurance calculator, a single 25 year old making $45k in a medium cost area would have to spend $3,400 on insurance, not $5k, so that's off by nearly a third. http://healthreform.kff.org/SubsidyCalculator.aspx And that's for a silver plan, not for a bronze plan which could be less. Plus it leaves out catastrophic plans which may be available for younger people and which also could have lower premiums. Plus a lot of those just starting out will have health insurance through their employers and so can start saving for that house anyway. Yes,l for those who don't get insurance through their employer it's not a trivial amount. But at least the rest of us won't wind up picking up the rest of his health care costs if he gets hit by a bus, or comes down with MS, or diabetes, or....
- dsimon
April 16, 2012 at 7:39pm
DSimon writes: "Where are you getting your stats? Perhaps you could provide a cite, because to my understanding that is simply not true. Not only do we not handily beat them all, but they beat us in many areas." Do you ever feel silly reading the NYTimes? They cherry pick a few bits and pieces here to force you to reach the conclusion they want you to reach. And you lap it. :) In any case, trying to poke holes by citing Country A is great for Cancer X, and B is great for Y is silly. Look at the entire picture first: And according the WSJ article titled "Cancer Care Grand Rounds" from 1983 to 1999 (published 4 days ago using the latest data available), the Univ of Chicago notes, yes, the US spends more, but our survival times are longer. And that survival time costs about $20,000 per patient to extend the life by 2.3 years. That is cheap as hell, especially when you consider so many cancers strike while a parent is still trying ot be a parent. In 2007, the Lancet came to a similar conclusion that over all malignancies, US men had a 20% higher survival rate (66% to 47%) for all malignancies. Again, a staggering stat. Search on "US Cancer Care is Number One" So, I think my conclusions remains valid: If you get seriously sick, the US is the best place to get seriously sick. Yes, it costs more, but the cost adder is reasonable and worth it. DSimon writes: "As for inferior care for the old and sick, again I believe you've read The Healing of America and should know that life expectancy for people who have reached 60 is shorter here than in our peer nations" yes, but these studies never disconnect the genetic component. For example, the poorest women in the US live longer than the richest men. Think about that. That speaks volumes about how much genetics plays in all this. It's not money at all. Now, if you find a study that says "People in Okinawa live to be 93 in Okinawa on average, but only 75 when the move to the US" then I'd like to read that. But generally, all these old-age studies point out is genetic traits and have little to do with quality of health care. And I think you'll find that Japanese in American live as long as Japanese in Japan. Ditto for all other groups. Thus, it's not health care that enables these long ages. It's the genetics. There is the story about Milton Friedman talking to a Swedish economist, and the Swede says "In Scandinavia we have no poverty." Milton Friedman answered, "That's interesting, because in America among Scandinavians, we have no poverty either." Very similar. DSimon writes: "No, it means that many Republicans were never negotiating in good faith." Barney Frank just came out in the last day or two and said “Obama made the same mistake Clinton made,” Frank said in a wide-ranging interview with New York magazine. “When you try to extend health care to people who don’t have it, people who have it and are on the whole satisfied with it get nervous.” This hints at the larger problem. Certain things are SO BIG that they require both sides to convince the population that it's safe. Adn then you get enough people thinking "OK, maybe this will work" But you have to know this goign into it. And you cannot go into this trying to roll the other side. Honestly, I feel like if this had 80% approval right now that there would not have even been a legal challenge to the mandate. But that is one of the many tactical mistakes dems made. Ramming it through doomed it from the start. But Polosi et al were so intoxicated with their "mandate" and all the "Hey Jon (McCain), I won" from Obama rhetoric that it started off badly, and finished worse And frankly, when one side fails to give the other side the respect they deserve, big things will always end up badly. You must work for a living. Certainly you know certain things are too big to try at work without first getting broad consensus from everyone. And that means a lot of back room deals, and finding out what everyone wants and can live without. But even at a big company, if you try to mandate something half the managers will just dig in their heals and make things miserable for you. Never do it. Work it first behind the scenes. Build consensus in private. it's give and take. This is just business 101. And the dems ignored it. At their peril. DSimon writes: "We have plenty of existence proofs that governments will hold down health care spending when everyone is in the system so that there is a political incentive to do so. All of our peer nations have done it." No they haven't. And TR Reid's book illustrated that. Most every country is fighting health care costs rising faster than inflation. That is the nature of the problem. Health care is a 1:1 enterprise. It does not scale like silicon. Add to that that the doctor has more diagnostics at his fingertips than ever before, and the inevitable conclusion is that as long as healthcare remains a 1:1 endeavor with increased technology, it will continue to outpace GDP. DSimon writes: "And I still don't understand how it's possible to argue that governments will never get health care spending under control, and then make the (false) assertion that governments elsewhere have responded by cutting vital care and so deliver worse outcomes than our system. Don't those two contradict each other?" Think about it: 50 years ago, if you had a bad heart, all the could advise was rest. Maybe some nitro pills. It didn't matter if the doctor spent one hour with you, or 50 hours with you. the outcome was the same. Today, if you have a bad heart, the a team of doctors and nurses can spend between 1 hour and 200 hours on you, and each hour they spend makes you a little bit better--from drugs to surgery to replacement. And as we get more and more "rich", then we opt to spend what extra money we have on buying a little bit more time. In other words, if medical technology works, then we will always spend more on it to increase our quality of life. It will never go backwards. Ever. Only if someone is willing to forego treatment will it go backwards, or if we can find a way to automate much of what doctors do today (in which case we can start to aim for semiconductor economies of scale aka moore's law) or find a drug that does wonders (mega statins that completely shut down heart disease, for example). But there will always be another ailment waiting in the wings. And that ailment will respond to more attention and $. And thus health care costs will probably always outpace GDP as long as treatments work.
- seattleeng
April 16, 2012 at 8:22pm
DSimon writes: "Plus it leaves out catastrophic plans which may be available for younger people and which also could have lower premiums. " CBO says the price of Bronze Plan will be $4500 to $5000 (search on CBO and bronze plan). There is nothing below the bronze plan that is permitted to my knowledge. That is the problem here: If ACA allowed a catcare policy, then maybe this becomes workable. But they do not as my readings says they all must provide "essential health benefits" (drug counseling, birth control, etc) The federal poverty level for a single person is about $11K. If you are single and earning over 4X FPL, then you get no help. So, a single person earning $45K is on the hook for the $4500 the bronze plan will cost That is a lot. As I noted, over 10 years, that is some $50,000, which would have otherwise been a down payment on a house. The economics dont' get any better for a married couple either. In fact they get worse. DSimon writes: "Yes,l for those who don't get insurance through their employer it's not a trivial amount. But at least the rest of us won't wind up picking up the rest of his health care costs if he gets hit by a bus, or comes down with MS, or diabetes, or...." Well yes, but I assumed our fictional 20-something had already take care of that concern by buying a $450 catastrophic care policy. That is what is at issue here: You have jacked up the cost by $4000 on a person that had already make an effort not to become a burden to society. PS. Whether the insurance is bought by the individual or paid for by the employer, it is the employees money in both cases. So the employee is paying for this no matter how you analyze it.
- seattleeng
April 16, 2012 at 8:52pm
"Do you ever feel silly reading the NYTimes? They cherry pick a few bits and pieces here to force you to reach the conclusion they want you to reach. And you lap it. :)" I don't think they're cherry-picking. I think you've got T.R. Reid's book on your shelf. It took me about 10 seconds to find at page 32: "A 2008 report by the Commonwealth Fund, 'Deaths Before Age 75 from Conditions That Are at Least Partially Modifiable with Effective Medical Care,' concluded that the United States is the worst of the developed countries on this measure....The number of people under seventy-five who die from curable illnesses was almost twice as high in the United States as in the countries that do the best on this measure: France, Japan, and Spain." Yes, this does not take into account possible genetic influences. But twice? And when we're spending so much more? Surely there must be other powerful influences at work (especially when much of our genetic population is European). As for the elderly, the US came in tied for last out of 23 countries on healthy life expectancy at age 60 (p.33). Yes, perhaps there is a genetic component. But again, our genes have a lot in common with many of our peer nations, we're spending tons more, and we're still last? Surely it's unlikely that the result is all due to genetics. "these studies never disconnect the genetic component. For example, the poorest women in the US live longer than the richest men. Think about that. That speaks volumes about how much genetics plays in all this." It speaks volumes about how that's another non sequitur to the matter at hand. Perhaps the poorest women elsewhere also live longer than the richest men. What you'd need to compare is the women here versus the women elsewhere, and the men here versus the men elsewhere. "trying to poke holes by citing Country A is great for Cancer X, and B is great for Y is silly. Look at the entire picture first" I'm all for looking at the entire picture, and I'd think that looking at cancer alone isn't looking at the entire picture (and even there, we do better with some cancers and worse with others). The overall numbers are pretty clear: we do no better than our peer countries while spending far, far more. "'We have plenty of existence proofs that governments will hold down health care spending when everyone is in the system so that there is a political incentive to do so. All of our peer nations have done it.' "No they haven't. And TR Reid's book illustrated that. Most every country is fighting health care costs rising faster than inflation." T.R. Reid wrote that every country thinks its system is too expensive. But it's incontrovertible that our peer nations have done a better job at holding down costs than we have. "And thus health care costs will probably always outpace GDP as long as treatments work." That's hardly inevitable. It depends on GDP growth, which may be higher than inflation. And I still don't see how your statements are not contradictory. You write that governments will never get health care spending under control. Then you assert that governments have cut care in ways that create worse outcomes. Doesn't that show that governments can (and do, according to your assertions) cut care? And again, if you really think they'll never get costs under control, why not resign yourself to fiscal Armageddon and stop worrying about reform? "Ramming it through doomed it from the start. But Polosi et al were so intoxicated with their 'mandate' and all the 'Hey Jon (McCain), I won' from Obama rhetoric that it started off badly, and finished worse" Really, spending over a year on the bill trying to get Republican votes is "ramming it through?" The Republicans were respected; how long did the "gang of six" drag things along? And the mandate was a conservative idea, until Democrats adopted it. Again, I ask: what was the proposal other than near-complete capitulation that would have gotten any substantial Republican support? I have yet to year it, probably because there was nothing Democrats could have offered that Republicans would have gone along with. It was already a moderately conservative proposal--again, more conservative than Nixon's. Again, supported by Bob Dole and Bill Frist. Again, based in large part on market principles and very similar to what Republicans proposed in response to Clinton's plan. But not a single Republican vote. Why do you think that was? Heck, Grassley was fundraising off of his opposition to the bill even as he was the Republican's chief negotiator on it. http://voices.washingtonpost.com/ezra-klein/2009/08/chuck_grassley_fundraises_agai.html He said he didn't want a government-run insurance plan--check--and didn't want it to add to the deficit--check (according to the CBO)--and still no votes. http://www.washingtonpost.com/wp-dyn/content/article/2009/08/19/AR2009081904125.html And then he said he wanted 80 votes in the Senate for a "bipartisan" bill, and refused to debunk the "death panel" myth? And this is negotiating in good faith? (Remember Mitch McConnell saying "The single most important thing we want to achieve is for President Obama to be a one-term president"? That couldn't have anything to do with the near-complete absence of bipartisanship, could it? Nah....) Yes, buy-in is great, but it requires people who will buy into...something. If you have the Republican memo on what would have signed onto that would have covered most of the currently uninsured, please share it. (Heck, even today the Obama administration has given states the option to come up with their own plans as long as they cover as many as the ACA would, and to my knowledge no state, even the Republican-controlled ones, have submitted a single thing.)
- dsimon
April 16, 2012 at 9:45pm
"In other words, if medical technology works, then we will always spend more on it to increase our quality of life." Not true. Many advances, especially when we have cracked the mystery and the basic structure of a disease has been understood, become less complex and cheaper to administer. The defeat of TB in advanced countries and then in less advanced ones is a good example of this. We no longer need huge wards to corral those suffering and keep them from infecting their families because children get a set of innoculations and the physical environment (e.g. housing) is better than it was in the 1940s.
- ironyroad
April 16, 2012 at 10:27pm
seattleeng: "CBO says the price of Bronze Plan will be $4500 to $5000" Yes, they said that. But: "The CBO has based those projections on minimum coverage requirements and a bronze plan coverage description in the original version of the Senate health bill, H.R. 3950." http://edit.lifeandhealthinsurancenews.com/News/2010/1/Pages/CBO-Analyzes-Cost-Of-Bronze-Plans.aspx?k=3950 The original Senate bill was not what became law; it was modified in reconciliation. So I suspect the Kaiser calculator is more accurate. "There is nothing below the bronze plan that is permitted to my knowledge." Well, that very same CBO letter said: "People below the age of 30 would be permitted to fulfill the mandate by purchasing coverage which is expected to cost considerably less than the bronze plan." http://nchc.org/facts-resources/cbo-letter-snowe-bronze-plan And that's true even in the current version of the law: "While the bronze plan is available to anyone, the law also provides for another level of catastrophic insurance limited to people younger than 30 and expected to be even skimpier." http://www.chicagotribune.com/business/breaking/chi-misconceptions-seen-in-health-care-reform-arguments-20120410,0,1523685.story So maybe some more research is in order before claiming the $4500k number (apparently reduced from the original claim of $5k) as fact.
- dsimon
April 16, 2012 at 10:37pm
Dhurtado -- limitation that it grants to power only to prohibit conduct : perhaps my judgement is jaded by my engineering background, where regulators "throttle" output. However, the history of government regulation (as I'm aware of it) is framed in terms of what you can't sell. Nusholz -- cannot require car companies to provide a certain bumper, or include a seat belt... : The regulation is on what the company may sell interstate, not what you must buy. I do not have to buy a car with belts; rather, GM is not permitted to ship one interstate. -- if the war clause authorizes it, why can't the commerce clause Again, it is tradition, I believe. War powers imply the power to purchase war materiel. Regulation implies the power to inhibit. This article is interesting; the author believes there is a history of "regulating" requiring the purchase of a good. If there is a large body of such laws, then I'll have to submit, but as I pointed out earlier, these two examples were passed by the same august body that passed the Sedition laws, so I'm not (yet) convinced.
- karlwk
April 17, 2012 at 8:52am
Irony writes: "Not true. Many advances, especially when we have cracked the mystery and the basic structure of a disease has been understood, become less complex and cheaper to administer." Of course. But what else did I say? "But there will always be another ailment waiting in the wings. " That is why the price always rises. Heart disease is very expensive to fix today. Maybe someday there is a single pill to fix it. And then we move onto expensive ones such as alzheimers, brittle bones, etc That is why the cost will continue to go up. And the cheap diseases will not be the disease that fells you. Because it's easy to cure that. The disease that fells you will always be the expensive one to fix. And that requires money. And as people have more money, they will spend a larger % of it trying to avoid being, uh, felled :)
- seattleeng
April 17, 2012 at 10:56am
DSimon writes: "A 2008 report by the Commonwealth Fund, 'Deaths Before Age 75 from Conditions That Are at Least Partially Modifiable with Effective Medical Care,' concluded that the United States is the worst of the developed countries on this measure" Again, this does not address the genetic component and it largely reflects our very diverse population and enormous geographic span. A japanese person living the US has the same life span as a japanese person living in Japan. Ditto for a french person, a swede, etc. Thus, if your thesis were true that health care overall was awful in the US, these data points wouldn't exist. And yet they do. And it gets even more interesting if you look at smaller population groups in the US. For example, Asian-American women living in certain areas of California typically reach age 91. www.worldhealth.net/news/asian_women_in_bergen_have_nation_s_top_/ Thus, studies that love to show life expectancy without adjusting for genetics are doing the reader a grave disservice. Be smarter than that. I know that is the answer you like to see, but scratch below the surface to really understand it better.
- seattleeng
April 17, 2012 at 11:10am
DSimon writes: ""People below the age of 30 would be permitted to fulfill the mandate by purchasing coverage which is expected to cost considerably less than the bronze plan" We'll see. Even if the Kaiser calculator is right, it is still a $35,000 expense during a 10 year period when a person should be saving for a house. And when a $5,000 product would have sufficed. That's a $30,000 penalty on a young person. let's say the cost ultimately is $3,000, when the young person might have been paying just $500 per year. You don't find this burdensome at all? Especially considering how much of a young persons earnings are already being irretrievably siphoned off to the old via debt, SS, medicare, etc?
- seattleeng
April 17, 2012 at 11:14am
Actually, DSimon, how about naming a number in which you DO think it becomes too burdensome for a young person earning, say, $45K, right out of college.
- seattleeng
April 17, 2012 at 11:17am
DSimon writes: "We have plenty of existence proofs that governments will hold down health care spending when everyone is in the system so that there is a political incentive to do so. All of our peer nations have done it. And I still don't understand how it's possible to argue that governments will never get health care spending under control, and then make the (false) assertion that governments elsewhere have responded by cutting vital care and so deliver worse outcomes than our system. Don't those two contradict each other?" Then please, show me the country that has managed to cap health care cost at GDP growth for 10 years. No, they dont' contradict. There is no question UK NHS is under enormous cost pressure. And there is no question that the UK is under serious scrutiny for their (alleged) lack of care for the elderly (and young) and other areas. Adn this isn't new. The BBC reported in 2006 in an opening graf "The joint report by three public sector watchdogs said the NHS and care services treated older people with a lack of dignity and respect." And BBC reported in 2011 elderly care dossier shows "shameful attitudes", while the telegraph reported in 2012 "elderly dying to to despicable age discrimination" OK, that is quality of care. What about cost? The NHS funding grows in excess of GDP. As a % of GDP, in 2000, the UK spent about 5.5%, growing today to almost 8%. That is an enormous growth for just a decade. So, let's look at our existence proofs here: 1) Quality of care is receiving serious scrutiny and appears to be worsening at least among the elderly. 2) Cost is growing faster than GDP, and the first derivative is increasing. That's engineering speak for "it's getting worse". In other words, they are not getting costs under control. So, how can this be? How can things be getting worse for old people even though the government is spending more and more on health care? These are not contradictory at all. Now, in all fairness to the NHS, they are in a cycle that is completely to be expected. The problem is that it will never correct itself because the rules of the game will not permit it.
- seattleeng
April 17, 2012 at 12:11pm
seattleeng: "Even if the Kaiser calculator is right, it is still a $35,000 expense during a 10 year period when a person should be saving for a house." No, it's not $35,000. That was for a silver plan, not even for a bronze plan, not even for the sub-bronze plan that's available for those under 30 that would still satisfy the mandate. And is it your contention that everyone should be saving for a house? And right out of school? When did that become a societal imperative? Everyone has a right to make enough to save for a house? Sounds like socialism! "Again, this does not address the genetic component and it largely reflects our very diverse population and enormous geographic span." Why should geography matter? And again, even if there is a genetic component, don't we in our diversity have those genes over here too? Where did our ancestors come from? And why, if we have such a mix of good and bad genes, would we be doing so poorly compared to our peer group, especially as we spend so much, much more? (Plus many nations are hardly genetically homogeneous anymore, including those who do as well or better than we do on health care statistics.) And if Japanese people here have the same lifespan as those in Japan, then that works against the claim that we do health care here just as well--because we spend so much more and still don't get any better results for that sub-population. "Be smarter than that. I know that is the answer you like to see, but scratch below the surface to really understand it better." Back at you. I think my paragraphs above make the point. As for your claim that $500 a year is enough to purchase a policy that ensures you won't be a burden on society, I think we've had this discussion before and that number will not get a policy worth anything. I have a high-deductible individual plan, and the premium is way higher than that. A 60 year old in CA recently payed over $500 every two months for a plan with a $5k deductible. http://articles.latimes.com/2010/nov/09/business/la-fi-high-deductibles-20101109 The premium would likely be less for a younger person, but six times less? Plus if those with such plans avoid preventative care to avoid the out of pocket costs, they may get more serious ailments and add to the "burden on society" by running up expenses over the long term. $45k, by the way, is close to median household income. I don't think a few thousand is excessive; after all, one is getting insurance out of it. (Plus aren't such people probably among the "lucky duckies" who get out of paying income taxes, or pay very little?) I'm still really interested in the three page alternative. Those pages that legislation is printed on are pretty small and double-spaced, so it doesn't sound like a big project. Again, what is the Republican counterproposal that would cover as many people as the ACA? What could the Democrats have offered that had any real chance of Republican buy-in? It would be nice to have these question answered.
- dsimon
April 17, 2012 at 12:34pm
"No, they dont' contradict." Yes, they do. If they're not providing care, then they're obviously denying some care. Denying care saves money, which you claim governments can't do. Whether the overall cost is still "more" depends on what baseline you pick, but isn't terribly relevant as to whether governments are saving money by denying care rather than providing every treatment imaginable--which I thought you claimed would be the inevitable result (crystal therapy and all that, right?). "The NHS funding grows in excess of GDP. As a % of GDP, in 2000, the UK spent about 5.5%, growing today to almost 8%. That is an enormous growth for just a decade." The increase in NHS funding was a purposeful move on the part of the Blair administration in 1998 to bring their spending in line with their European peers: he committed to take what was then considered low NHS funding to 8% of GDP by 2006. http://www.dailymail.co.uk/news/article-94561/Public-unhappy-NHS--poll.html#ixzz1sJnmqUv7 So the increase has little to do with some inexorable pressure spend more and more; it was societal policy decision that had public support. And even with that increase, it's still far lower than here, where costs are 16% of GDP. (And why not look at other countries? Everyone seems to make the NHS their bete noir, even if it may not be representative (talk about needing to look at the whole picture...)).
- dsimon
April 17, 2012 at 1:16pm
"And as people have more money, they will spend a larger % of it trying to avoid being, uh, felled :)" Indeed, and what's wrong with this? What, as a society, should we spend our wealth on? Faster missiles with bigger bangs? One of the reasons that less of us are "felled" as children as was the case in the 19th century is that public health is better, water supply is purer, and so on. This was a classic case of health-improving measures that could not be managed by an individual, but only by government (municipal or other). Anti-felling seems to be money well spent. I don't think you contradict my point about breakthroughs with your point, seattle, as both are true. Certainly new ailments come up for closer scrutiny as others become easier and cheaper to deal with. That's in the nature of things. But also the economy expands over time, and costs which once demanded large slices of revenue become much thinner, and better measures of cost control can be introduced (there is plenty of room for that without cutting into care) if the will is there. Allowing more than just the VA to negotiate with the drug companies, for example.
- ironyroad
April 17, 2012 at 2:29pm
DSimon writes: "No, it's not $35,000. That was for a silver plan, not even for a bronze plan, not even for the sub-bronze plan that's available for those under 30 that would still satisfy the mandate. And is it your contention that everyone should be saving for a house? And right out of school? When did that become a societal imperative? Everyone has a right to make enough to save for a house? Sounds like socialism!" The sub bronze plan still must cover all essential services. We will see how low that actually gets. For me, if the premium on a 20-something is a few hundred dollars over the $500 market value today, then it's workable. If it's more than $1000, then it's not. When did I say buying a house is an imperative? Most responsible 20-somethings will be saving for something, however, and this seriously impacts their ability to save. Be it a house, or a child or a car. I know, it's a novel concept to actual save for something you want. But before the moocher mentality took over, that is really how our parents did things. And it's part of what made this country exceptional. Dsimon writes: " The premium would likely be less for a younger person, but six times less? Plus if those with such plans avoid preventative care to avoid the out of pocket costs, they may get more serious ailments and add to the "burden on society" by running up expenses over the long term." Go check on esurance. That's what the free market is able to provide today. Remember, we are talking about RESPONSIBLE people here, using cat-care as a tool to manage costs. Since they are RESPONSIBLE, they still go get physicals. They just spend their own money on those. A physical is actually pretty cheap. Few hundred dollars including blood work. I am surprised that you find responsible behavior so rare. Maybe it is increasingly rare. But those that are responsible are seldom poor. Perhaps there's a correlation there, eh? Dsimon writes: "Again, what is the Republican counterproposal that would cover as many people as the ACA?" Cover as many people? The amount covered by ACA would have been branded a MASSIVE FAIL in 2007 by the left. Let's not pretend like we suddenly are concerned with covering a lot of people. DSimon writes: "And if Japanese people here have the same lifespan as those in Japan, then that works against the claim that we do health care here just as well--because we spend so much more and still don't get any better results for that sub-population." First, you ignore that many of our citizens enjoy much longer lifespan here versus home. Even removing violence from the mix, most african-americans live longer in the US than in africa. So the increase does indeed do some good. But your statement ignores that we have optimized to treat the very ill better than anyone else in the world. As I said, maybe we aren't the best for helping a poor person get penicillin for strep throat for free. No question. But that isn't what we set out to build. We always thought the poor would priortize health care of cell phones with $100/month data plans. Boy, were we wrong. Your statement also ignores that wealthy nations will ALWAYS spend a greater % of GDP on healthcare. It is a luxury they can afford. It is a marker for wealth. Anytime health care growth exceeds GDP growth, then it means the same thing is happening in that country too. So that means the UK is right behind us on this. And so is every other country. And they will catch up. Obesity, for better or worse, also tends to be a marker for wealth. People used to think Fat Americans were unique, but weights have been rising throughout UK/EU and Asia. Again, as nations become richer, they become fatter. In this regard, the EU is about 15-25 years behind us, but make no mistake they are following the exact same path. Dsimon writes: "So the increase has little to do with some inexorable pressure spend more and more; it was societal policy decision that had public support. And even with that increase, it's still far lower than here, where costs are 16% of GDP" UK health care spending is about where we were in 1985 in terms of % GDP. It is outpacing GDP, and thus will continue to increase. They lag us by about 25 years here. Roughly 35 years if you consider oral health. :) Summary: I don't think there's anything exceptionally bad about US healthcare. it's about where I'd expect it to be for a country that has prided itself on innovation and catering to those with money to spend. And in that regards, I think it's doing quite well. You still need to find a country that can show a decade of cost-containment on health care. Until you do, there is no reason to think this change to our health care will change our current growth trajectory.
- seattleeng
April 17, 2012 at 3:48pm
irony writes: "Indeed, and what's wrong with this?" Nothing. Irony writes: "But also the economy expands over time, and costs which once demanded large slices of revenue become much thinner, and better measures of cost control can be introduced (there is plenty of room for that without cutting into care) if the will is there." You are operating from the assumption there is a lot of waste that can be removed form our system. Sure, there is some, but not as much as you think. Maybe 2 or 3 years of growth, but then we are right back to where we started. But after you've squeezed this last 15% of waste out of the system, then what? At some point, you have to ack that it is what it is. You can't demonize insurance companies forever as badly as some might want to.
- seattleeng
April 17, 2012 at 3:52pm
seattleeng: "You still need to find a country that can show a decade of cost-containment on health care." Canada from 1990 to 2000. Expenditures went from 9% to 9.1% of GDP. I think we can agree that the .1% is de minimus. http://www.commonwealthfund.org/~/media/Files/Publications/Chartbook/1999/Oct/Health%20and%20Population%20Aging%20%20A%20Multinational%20Comparison/Anderson_healthpop_multi99_354%20pdf.pdf (page 11) If you pick 1992 as a starting point, several countries look like they decreased or had essentially flat spending as a share of GDP over the following 8 years. "Most responsible 20-somethings will be saving for something, however, and this seriously impacts their ability to save." Fine. You argued in another thread that all people had to do was forego the cable TV. Even above you criticize those latching on to $100 a month cell phone plans. So let that apply here and have the truly deserving save away. "Remember, we are talking about RESPONSIBLE people here" Some of them are responsible. Some are not. Some have an inflated sense of their own invulnerability. That's why there's a mandate, no? If we assumed everyone was "responsible," we wouldn't need the mandate. "Since they are RESPONSIBLE, they still go get physicals. They just spend their own money on those." Well, there's a Rand study on this, and a lot of them didn't, even when preventative care was effectively free. "In families with high-deductible plans, kids were less likely to get immunizations and adults were less likely to get cancer screenings. Not only did this seem to jeopardize the beneficiaries' health, it also called into question the cost savings. After all, as the authors pointed out, it was possible the failure to get preventative care in the first year would lead to bigger, more expensive medical problems down the road. "This was not a surprising finding. The original, gold-standard study on high deductible insurance, also from Rand, found that people couldn't discern between useful and unnecessary care. More recent studies have suggested that higher co-payments on prescription drugs discouraged seniors from taking medication to control high-blood pressure. "What makes this latest examination particularly arresting is that the high-deductible plans involved in the study actually made special exceptions for preventive care, effectively making it free." http://www.kaiserhealthnews.org/Columns/2011/March/032911cohn.aspx Worth reading the whole thing. I don't think your discussion regarding the Japanese assertions address the issue. If people here would live exactly as long as they would abroad, then it seems to me that we're wasting money. "The amount covered by ACA would have been branded a MASSIVE FAIL in 2007 by the left. Let's not pretend like we suddenly are concerned with covering a lot of people." Enough with the non sequiturs. I agree that the ACA coverage is not as substantial as many on the left would have liked, but that wasn't the question. The issue is whether there is a Republican alternative. You wrote about buy-in, and the administration gave states the opportunity. Any state could submit such a plan, but no Republican-controlled state has done so. Neither did Republicans on the federal level. Wouldn't the absence of any proposal that would cover even what the ACA covers constitute an even more MASSIVE FAIL? So where is the magic bipartisan plan, and who is responsible for its absence? "In this regard, the EU is about 15-25 years behind us, but make no mistake they are following the exact same path." That's nothing more than conjecture on your part. And in any case I'd much rather be in their position than ours. Wouldn't you? "UK health care spending is about where we were in 1985 in terms of % GDP. It is outpacing GDP, and thus will continue to increase." Another non sequitur. You implied that UK spending had increased because of exploding expenses. I showed that that assumption was wrong, and that it was mostly due to a concerted effort to bring its low and possibly inadequate levels of spending in line with its peers. "I don't think there's anything exceptionally bad about US healthcare. it's about where I'd expect it to be for a country that has prided itself on innovation and catering to those with money to spend. And in that regards, I think it's doing quite well." I don't know how many business people would pay 50% to 100% more for no better or only somewhat comparable results, but maybe you know different people than I do. And again, if you really think that health care expenses will always increase faster than GDP, why bother even having this discussion?
- dsimon
April 17, 2012 at 4:41pm
I don't know if I follow your argument 100% there, seattle, but I have a strange impression that if we were exchanging letters (or telegrams -- expensive but fast!) on the topic of health care in 1912, you would be saying about the recent discovery of penicillin: "It'll just make things worse, because now more people will be wanting to be cured." And then you'd go on to say: "And the economy! After that Roosevelt guy and his so-called anti-trust campaign and those national parks -- well, pure communism, is my opinion. I think this country's sunk. By 1950 we'll be poorer than Mexico. Yep, you heard it here first! And don't get me started on those subway lines in New York City . . ." I'm not saying that googly-eyed optimism is the only way. I am saying that a combination of medical developments, an expanding economy (even modestly expanding), and solid efforts to manage costs effectively should begin to bend the curve in the right direction and move toward universal coverage.
- ironyroad
April 17, 2012 at 5:32pm
Karlwk says: "Dhurtado -- limitation that it grants to power only to prohibit conduct : perhaps my judgement is jaded by my engineering background, where regulators "throttle" output. However, the history of government regulation (as I'm aware of it) is framed in terms of what you can't sell. "Nusholz -- cannot require car companies to provide a certain bumper, or include a seat belt... : The regulation is on what the company may sell interstate, not what you must buy. I do not have to buy a car with belts; rather, GM is not permitted to ship one interstate. " Automobile manufacturers are required to install seat belts and air bags in the vehichles they manufacture and sell. It is word-play to characterize the requirement as a prohibition on selling cars without seat belts and air bags. The manufacturers are required to undertake the affirmative act purchasing seat belts and air baga and installing them in the automobiles. Dhurtado
- NR143296
April 18, 2012 at 1:43am
Dsimon writes: "Canada from 1990 to 2000. Expenditures went from 9% to 9.1% of GDP." OK, you win a cookie for that. :) But longer term, over, say, a 15 year horizon, canada et all have all shown the same long-term problem in terms of holding down health care costs. www.cmaj.ca/content/177/1/51/F1.expansion.html Dsimon writes: " If we assumed everyone was "responsible," we wouldn't need the mandate." We KNOW everyone isn't responsible, right? But the country tends to increasingly punish the responsible in dealing with the irresponsible. That is a long-term recipe for disaster. DSimon writes: "Well, there's a Rand study on this, and a lot of them didn't, even when preventative care was effectively free." Again, just because a physical is free, people won't go and get it. No surprise. Dsimon writes: " If people here would live exactly as long as they would abroad, then it seems to me that we're wasting money." Or, as I noted, it's being spent on other things? We've substantially increased the life span of Africans living the in the US. So, maybe the extra spend doesn't help the 90 year old Japanese person at all. but it substantially increases the life of the citizen from Africa. DSimon writes: " The issue is whether there is a Republican alternative. " Of course there was. See McCain's plan. DSimon writes: "That's nothing more than conjecture on your part. And in any case I'd much rather be in their position than ours. Wouldn't you?" You doubt the EU is becoming fatter? Do you not read? Search for the headline "Obesity Not Just U.S Problem.: Half of Europe Fat, Report Says" Whether I was poor, middle class or rich, I'd prefer to be in the US economy due to more disposable income at every tier. DSimon writes: "You implied that UK spending had increased because of exploding expenses. You are asserting UK spending will stabilize after this "fix" is implemented? Other spending in EU has not. Nor has Canada. See the first link in this post. Canada's 2020 will be our 2000 spending. They are only 20 years behind us in this regard. DSimon writes: "I don't know how many business people would pay 50% to 100% more for no better or only somewhat comparable results, but maybe you know different people than I do." But you haven't established we're overpaying. When you adjust for wealth overall, we're not too far out of whack. And the adder gets us phenomenal cancer care. Pretty good deal. DSimon writes: "And again, if you really think that health care expenses will always increase faster than GDP, why bother even having this discussion?"
Because there are people like you that want everything in the country to flow through the government. I believe at a certain level, the government becomes an impairment to growth. And I believe growth fuels innovation. And growth and innovation combined ensure our productivity will outpace everyone else in this world, ensuring the best standard of living for our citizens at all economic levels.
That's why.
- seattleeng
April 18, 2012 at 9:52am
Irony writes: ""It'll just make things worse, because now more people will be wanting to be cured."" Why would I be saying that? I'm the guy that thinks our spending is not too unreasonable, remember?
- seattleeng
April 18, 2012 at 9:53am
seattle says: "Today, a 20-something that wants to guard against a life changing event such as cancer or getting hit buy a bus would do that with a catastrophic care policy. These policies have massive deductibles. But, if you are hit by a bus, your total cost exposure might be $5,000, which is well within the ability for anyone with 6 months savings set aside to cover (and that should be everyone over 20 in this country). Beyond that amount, insurance covers everything. Now, the cost to buy a catastrophic care policy today for a 20-something is $420/year. That is how much a 20-something must spend to ensure they never become a burden to the larger society (which is what everyone here is breathlessly worried about). But ACA does not allow a catastrophic care policy to be purchased. Instead, they only permit a "bronze" plan, which the CBO estimates will cost between $4500 and $5500. This bronze plan covers mandatories including contraception, newborn care, physical therapy, pediatric oral care, etc. So, this is really the rub in all this and something that the scotus must heavily consider: A responsible 20-something that has no need for these services will be forced to buy something they do not want or need. And the cost for that is $5000. As the author at Volokh points out, this is nothing more than a subsidy required of the young to be transferred to the old. As if we haven't done enough of that already." As Dsimon pointed out the about the flaws of catastrophic coverage, Seattle's clinging to the notion that a 20-something would prefer a catastrophic coverage plan that only covers the big, one-time health emergency with a yearly $5K deductible versus a plan that carries those specious "luxuries" like contraception, newborn care, physical therapy (very handy after surgery recovery) pediatric oral care," is specious at best. Most HSA's have a cap on yearly contributions of $3100 for the individual and $6200 for a family. So even if a single 20-something suddenly got hit by a bus, was "responsible" and saved, he'd still have to come up with $2k after depleting the HSA and fulfilling the $5K deductible. Maybe he wasn't as "responsible" as Seattle was and only banked $1000 in his HSA and has a month's worth of rent money socked away in savings. What then? The mandate isn't a direct subsidy from the young to the old. It's an incentive for an uninsured individual to get insurance before the mandate kicks in. SS & medicare taxes are already subsidies to the old. It's unclear to me if Seattle finds the conservative idea of the mandate unsatisfactory or just this particular version of the mandate. And if Seattle is about cheering on the responsible 20-something that only needs a physical every 2 years then why shy away from requiring them to have a health insurance plan? Maybe Seattle specifically chose to highlight specific health services (as proof of healthcare overburden) that 51% of the population uses or would use on a regular basis. Women have a healthcare consumption rate twice that of a 20 year old male because he would chose to ignore the female aspect of health care use and demand. I tried pointing this out once before but it got lost on another thread but really the Cat-Care is for the single male or female that isn't married, isn't planning on having kids and is probably renting, underemployed or unemployed and not still on their parent's coverage. Most 20-somethings I know don't have 6 months worth of savings socked away and another $5K in their HSA. They're too busy trying to get by on those measly part-time contract jobs they pick up while waiting to get a stable job with employer provided health insurance. They're responsible but maybe not as virtuous as Seattle was when he slung baby-back ribs at Chili's back in the day. Maybe the cost of the "bronze" plan would cost an uninsured 20-something $4500 a year IF they don't already have insurance when the mandate kicks in. A 22-year old just out of college is still able to stay on their parent's family plan. If they're lucky, they land a job where part of the perks at the Google-plant aside from free-lunch, is healthcare coverage superior to the 'bronze' plan. If someone already has an HSA before the mandate takes effect, their HSA isn't taken away from them and then they're forced to enroll in the 'bronze' plan. They would have no change, the only difference being is their HSA might have to provide more wellness check-ups, and other low-cost health services inline with the ACA baseline that would theoretically reduce the need for high-cost health treatment. Maybe the issue isn't that we are expanding the access to healthcare coverage to everyone (most especially those working poor or underemployed who have had limited access, those with preexisting conditions or maxed out policies) by requiring people to have it, but it's that we have 51% of the population using the doctors too much for silly things like yearly mammograms, over-use of double mastectomies, caesarian sections, treatment of other female related health conditions and the over-zealous cancer screenings that we do, as well as the propensity for trying to extend life beyond what an individual would care to live to. Why force a doctor to keep an 80yr terminally ill patient on life-support and keep resuscitating them after each flat line when the quality of life might only be 30 days or 6 months of being a virtual cyborg.
- singlspeed
April 18, 2012 at 4:37pm
seattleeng: "there are people like you that want everything in the country to flow through the government." No, I wrote nothing of the sort. If you think I did, perhaps you should refer to it. You seemed to assert that health care expenses were never going to be controlled no matter what. In that case, we will go bankrupt regardless of whether those expenses are paid by the government or by individuals; it doesn't matter whether those payments come out of taxes, premiums, or out of pocket expenses. Are you now asserting something different? "And the adder gets us phenomenal cancer care." So what? Are we looking at "the whole picture" here, as you have advocated? Again, there seems to be avoidance of facts that are considered to be inconvenient. One of those facts is that others have been far better at holding down the increases in health care costs than we have. And even here, Medicare has done a better job in that regard than private insurance. I'm not in favor of having everything in the country run through government--but I'm also not willing to disregard evidence that sometimes and in some instances government provides a better approach. Again, would you rather be them or us given the apparent trends?
- dsimon
April 23, 2012 at 11:31am
"See McCain's plan." OK. Apparently, it barely increases coverage, among other deficiencies. Again, 21 states are completely controlled by the Republican party. Not one has offered a plan that will cover at least as many people as the ACA, whose coverage you deride as a massive fail. So again, how does the absence of any such plan not constitute an even greater massive fail? Or is this just another inconvenient question to be ignored? http://www.tnr.com/blog/jonathan-cohn/102870/romney-health-insurance-disruptive-employer-uninsured-cost "When John McCain proposed a similar set of policies during the 2008 campaign, the Urban Institute’s Linda Blumberg concluded: 'Stated simply, the McCain plan would (1) dramatically change the way Americans purchase health insurance; (2) incur a large budget cost, at least in the early years; and (3) barely reduce the number of people that are uninsured ... decrease access to insurance for those with higher-than-average medical needs and those at risk of higher medical costs due to their age or past health problems. ... it is possible that the combination of increased risk segmentation and limited financial assistance to the low-income population would lead to an increase in the number of uninsured.'"
- dsimon
April 23, 2012 at 11:52am