Insurance Mandate May Be Health Bill’s Undoing

Posted by Kendall Harmon

As Barack Obama battled Hillary Rodham Clinton over health care during the Democratic presidential primaries of 2008, he was adamant about one thing: Americans, he insisted, should not be required to buy health insurance.

“If things were that easy,” Mr. Obama told the talk show host Ellen DeGeneres in February of that year, “I could mandate everybody to buy a house, and that would solve the problem of homelessness. It doesn’t.”

Now President Obama may wish he had stuck to those words. On Monday, the Supreme Court agreed to take up a constitutional challenge to his landmark health care bill, and a decision could come in the midst of Mr. Obama’s 2012 re-election campaign.

Read it all.

Filed under: * Culture-WatchHealth & Medicine--The 2009 American Health Care Reform DebateLaw & Legal Issues* Economics, PoliticsEconomyConsumer/consumer spendingCorporations/Corporate LifePolitics in GeneralOffice of the PresidentPresident Barack Obama

Posted November 16, 2011 at 5:35 am

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1. Br. Michael wrote:

“Free health care”, but it’s not free.  Someone has to pay for it.

Or we could repeal the 13 Amendment and create a slave corps of healthcare providers to render health care.  But even so not even that would be free in terms of cost for even the slave must be fed.

So who is to pay for this “free health care”?  And how much with it cost?

November 16, 6:48 am | [comment link]
2. Capt. Father Warren wrote:

How much will it cost?

Depends: will we stimulate demand leaving supply static (Obamacare model)?

Or will we turn the private market place loose to innovate and create new products and services to meet demand, driving down costs in the intense crucible of competition (stimulating supply to meet demand)?

That will determine the trajectory of prices.

November 16, 8:08 am | [comment link]
3. billqs wrote:

The constitutionality of the individual mandate is what’s at stake.  The sad irony is that although it is manifestly unfair, the government may have the right to mandate health care through the incredible expansion of the Commerce Clause in the 20th Century. 

Through a combination of Supreme Court precedent and legislation following suit, the interstate commerce clause grew exponentially as it was used to justify all sorts of direct government involvement in social change. 

The high point of this precedent (or nadir, in my opinion) was the decision in Wickard v. Filburn where the Supreme Court said the Federal Government through the Commerce Clause was allowed to limit your ability to grow food to feed your family because it would keep you from buying food on the open market.  This was done to prop up price controls as part of the New Deal.

The Federal Government also used the Commerce Clause as an underpinning for the enforcement of much of the Civil Rights legislation in the 1960’s.  In Katzenbach v. McClung the high court ruled that a local restaurant with no direct interstate connections still violated the interstate commerce clause because it refused to serve people on the basis of race.

Obviously, some of the goals of policies were noble (for example landmark legislation on civil rights matters) but they were crafted and enforced by an “end justifies the means” mechanism that flies directly in the face of the plain reading of the Commerce Clause to the Constitution.  Basically, the Commerce Clause was used based on the outcome policymakers wanted to see, instead of a logical following of the law. 

There were and are other ways to achieve some of the same ends, for example using the 1866 law against imposing the “badges and incidents of slavery” based on race which is consonant with the Thirteenth Amendment which is the actual amendment that abolished slavery.

These appear to be the precedents cited by the DC Court of Appeals in upholding the individual mandate on Obamacare.  This opinion was written by a Reagan appointee who is very conservative, which has caused a great deal of surprise and consternation amongst political conservatives who cannot understand how this judge arrived at his result.

As far as I can figure out, Senior Judge Lawrence Silberman was upholding his duty to follow precedent, even precedent that leads to an unfortunate result.  Our rules on the importance of precedent known as stare decisis is a fundamental bulwark of our judicial system’s desire to make sure that law is interpreted the same way in every case involving the same legal question to ensure equal protection under the law.

Under a conservative view of the role of lower courts (district and circuit) existing precedent should be followed in application of the law.  The ability to change precedent ideally resides in the Supreme Court.

Does this mean that it is a “slam dunk” that the individual mandate will be upheld by the Supreme Court.  I would argue “no.”  Recent trends in the High Court have been to reign in some of the over-expansion of the Commerce Clause that has occurred since the 1930’s.  In US v. Lopez the Supreme Court struck down a federal law prohibiting firearms in the vicinity of public schools because it found no nexus between the activity being regulated and a “substantial impact” on interstate commerce. 

I hope I have given some perspective on how the legal system works, how I feel we have gotten into the mess we are in regarding overreach of the interstate commerce clause and what that might mean as far as the constitutionality of the individual mandate.  I’m absolutely not a fan of the individual mandate and I hope the Supreme Court uses this opportunity to reign back in some of the excess use of Commerce clause power, but I think we need to be sober enough to understand it might go the other way.

November 16, 10:16 am | [comment link]
4. Br. Michael wrote:

To follow #3:

If the Supreme Court upholds this then, in effect, the Court will be acting as a Constitutional Convention.  It will do away with the Constitution as a source of limited Federal power, and give the Federal Governmant the sort of general police power, under the Commerce clause, that has, heretofore, been reserved to the States.

The police power is a term of art that means “all the power a sovereign can have”.  The police power is the exact opposite of the concept of limited powers.  Under the police power a government can do anything it wants unless somehow limited.  Limited powers limits a sovereign’s powers to only those granted.  A government with limited powers can only do that which it is permitted to do by its founding document.  It is fundamental safe guard against governmental tyrany. 

At the Constitutional Convention, the Federalists, to include Monroe, argued strenuously for unlimited governmental powers for the Federal Government.  They lost and a federal system was created.

The Filburn case comes close to repealing the Constitution, but if the Supreme Court upholds the individual mandate, then this case plus Filburn does away with all notions of limitations on the power of the Federal Government and reduces the Constitution to a scrap of paper.

November 16, 10:43 am | [comment link]
5. In Texas wrote:

Exactly, most people don’t seem to understand that 90% of what the federal government currently does through legislation is based on the commerce clause.  I also found it interesting that some of the lower courts ruled that the purchase mandate was unconstitutional, but that didn’t invalidate the entire law.  Since this bill was rushed through on tricky parlimentary rules, the Obamacare law does not have that little clause that says if any part of this bill is vacated, it only vacates that part and the rest of the bill stands.  Without that, if any part of Obamacare is vacated, the entire law must be declared null and void.

November 16, 10:51 am | [comment link]
6. David Keller wrote:

Any bettors out there?  I’ll bet you the SCt is not going to rule on this before the election.  I’ll bet you they remand it to one or more of the circuits for some additional finding on something or other! But I tend to be rather synical about stuff like this—so I hope I’m wrong.

November 16, 11:25 am | [comment link]
7. Creedal Episcopalian wrote:

A “Health Care” plan is not insurance. This one is nothing more than a wedge to create another Ponzi-esque socialist wealth transfer scheme. Who is fooling who?
A national plan to provide catastrophic illness insurance might be workable. A plan to provide “free” health care for everyone is not.

As far as a resolution of this issue before the election, It is a political hot potato.  I hope and expect that the SC will try to avoid politicizing itself, but however it plays out the issue will be extremely important in next year’s election.  Perhaps it will need to be be delayed simply because of the immanent replacement of a justice or two.
Because of this the election itself could turn into a constitutional referendum involving the makeup of the supreme court.
The remaining democrats in the Senate may very well come to regret invoking the “nuclear option” last year when they lose their veto over SC nominations.

November 16, 12:05 pm | [comment link]
8. Br. Michael wrote:

I’m pretty cynical.  I don’t expect Federal Courts to rule against the expansion of Federal power because they are also creatures of the Federal Government and won’t rule against their own self interest or increase of power.

November 16, 12:43 pm | [comment link]
9. billqs wrote:

It would help to remember that an individual mandate to purchase private health insurance is not Obama’s endgame.  He would much prefer an individual mandate for everyone to pay into a national federally run healthcare.  That’s why the fine for individuals is much less than the cost of buying private healthcare, and also the fine for a business not providing private health insurance for employees is much less than the cost of providing the benefit.

It appears that this is set up to go the way of federal pension-underwriting, e.g. major companies find it too expensive to give promised benefits to their workers so they turn it over to the federal government to fund.  If Corporation X is underfunding pensions, why would they continue to offer health insurance, when it’s cheaper to pay the fine?

The end result is a chaotic mess that the right Democratic politician can claim “cries out for intervention by the federal government” without mentioning the federal government created the mess to start with.

November 16, 2:44 pm | [comment link]
10. Clueless wrote:

All I know is that the folks that The “O” is putting in charge explicitely favor health care rationing on the basis of age.

“Half the patients with chronic kidney failure in Britain are left untreated — and die as a result….” 

“The key to the British system, they contend, lies not in regulation but in a different attitude toward medicine, mortality and the scarcity of resources.  “

“Asked how he could turn away over-55 kidney patients from life-saving dialysis, one doctor told Aaron and Schwartz: ‘What you don’t seem to understand is that everybody over the age of 55 is a bit crumbly.”

Elections have consequences.  Even after the O departs, the system voted in by America’s envious will remain. There is a reason that envy is considered a “mortal sin”.

November 16, 6:14 pm | [comment link]
11. Cennydd13 wrote:

Since my wife and I already use our VA Health Care System (she’s a veteran, too), I don’t see why we should have to involuntarily enroll in Obamacare.

November 17, 1:37 pm | [comment link]
12. Cennydd13 wrote:

Are we going to be fined if we don’t sign up?  We’ll take them to court if we have to.

November 17, 1:39 pm | [comment link]

© 2014 Kendall S. Harmon. All rights reserved.

For original material from Titusonenine (such as articles and commentary by Dr. Harmon) permission to copy and distribute free of charge is granted, provided this notice, the logo, and the web site address are visible on all copies. For permission for use in for-profit publications, please email KSHarmon[at]mindspring[dot]com

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