ObamaCare & Limited Government

It is difficult to think of a piece of legislation, let alone a major reform act, that has suffered as grievously as ObamaCare has in its early days. I note that the Administration has been handing out wavers like they were campaign flyers. These wavers allow existing "mini-med" plans that would not be allowed under the legislation to continue in operation. To date, 733 such wavers have been issued. It is not only Republicans who are trying to stop ObamaCare from coming into effect.

I have noted below that the Administration has let slip that two key promises about the legislation—that it would lower costs and that Americans would be able to keep their own plans—are not going to be honored.

Republican victories up to and including the 2010 election were, at least in part, explicit and official rejections of ObamaCare. The same is true of the rejection of the legislation in the House of Representatives.

Then there is the fact that more than half the states (27 to date, and including South Dakota) are suing the Federal Government to stop the legislation. This is surely starting to look like a grand mess.

So far, two federal district courts have ruled the legislation constitutional and two have now ruled against it. Judge Vinson of the Northern District of Florida went so far as to overturn the legislation as a whole. He did so on the grounds that the "individual mandate" requiring all citizens to purchase health insurance is unconstitutional and not severable from the rest of the bill. I gather that the grounds for this are in the fact that a severability provision was added and then removed during the legislative process.

Judge Vinson's decision is beautifully written and forceful, if not quite compelling. He rejects the claim that the act is unconstitutional because it requires the states to drastically increase spending for Medicaid. That is surely the chief motive driving the lawsuits as the plaintiffs, many of them at the point of insolvency right now, think that this will bankrupt them. Participation in Medicaid, however, is voluntary and they can always opt out. I think this is correct, but it is a pyrrhic victory for ObamaCare. Might it not lead to the collapse of Medicaid?

His key finding is that the individual mandate regulates "inactivity" and so goes beyond any powers granted to Congress under the Commerce Clause. This is important because it is an attempt to determine where the line is between a very powerful Congress and an unlimited one. Here is a bit from Judge Vinson's decision, hat tip to The Volokh Conspiracy.

If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting — as was done in the Act — that compelling the actual transaction is itself "commercial and economic in nature, and substantially affects interstate commerce" [see Act § 1501(a)(1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted. It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be "difficult to perceive any limitation on federal power" [Lopez, supra, 514 U.S. at 564], and we would have a Constitution in name only.

Perhaps Judge Vinson reads this blog, for I note that this is the same argument that I made earlier. Can Congress require me to buy and drink green tea, to join a health club and penalize me if I don't regular fill out my exercise card, to join Weight Watchers or some list of approved government programs at the risk of penalty if I don't keep within a weight target decided by a House Committee? The answer to such questions is either yes or no.

If the answer is yes, then there are no limits on the powers of government other than the explicit prohibitions. That is an open question in the history of liberty in America, but I am guessing that most Americans would accept such a proposition.

If the answer is no, then proponents of ObamaCare have to show how the insurance mandate is not the same as the above. The difficulty is that major argument for the mandate doesn't obviously offer such a distinction. If enough individuals refuse to purchase health insurance that would indeed have a financial effect on the national healthcare system. But the same is true if enough individuals refuse to stop drinking jumbo cokes and eating Cheetos (the perfect food). That is the justification for obesity taxes, which are all the rage right now in right thinking municipalities.

ObamaCare may have done us a great service by forcing us to confront a hitherto evaded question. Can the government do anything to you or me that it is not explicitly prohibited from doing? Conservatives have long said no. Proponents of ObamaCare will have a hard time admitting that they think otherwise. Soon enough, they may have to.

Comments

[peggycox]

I just heard it on the radio that "Wise Health Insurance" can offer health insurance for just $1 a day any one aware of this ? have anyone purchased insurance through them. I did search for them and found them online.

[George Mason]

Peggy I am certain someone will sell you insurance for $1/day but it wont cover much. Obama care was going to require coverage for pre-existing conditions. That coverage could easily cost $100K/year. Obama sold this like the $1/day insurance and avoided the discussion of what the actual price to the individual would be.The Pelosi/Reid dems wanted everybody to believe that Obama would wave his magic wand and health insurance would be free and cover everything and the Constitution be damned ("we don't care about the Constitution."). KB according to Obama less than half the states participated, only 27 out of 57.

[J.A.]

In this day and age of rising health care costs, failure to purchase health insurance is not mere passivity. It is an active, perpetual choice, whether compelled by the size of inurance company premiums or by the daily prayer that one will not get sick.

More to the point, it is simplistic to say that the Health Care Reform Act's intent is to regulate the failure of a person to purchase health insurance. Rather, the purpose of the Act is to regulate the health care insurance market as a whole, a market whose premium costs is affected by the number (and health of)those enrolled. Btw, Judge Vinson in his decision acknowledges this purpose.

[George Mason]

J.A. the purpose of the act was to give the government power over the individual. If reducing health care costs was the actual intent the act would have removed the government from regulating health care costs for the large percentage of our population as it currently does. Medicare and medicaid do not pay to costs. This forces higher costs on every one else. Eliminate the deduction for companies purchasing health insurance for their employees and allow the individual to deduct the purchase of individual policies and allow competition between the insurance companies and health care providers control costs. Allow insurance companies to sell across state lines to increase that competition. What government needs to regulate is the legal profession. Currently there is no independent oversight or regulatory body that can rein in the excesses of unrestrained litigation. The practice of defensive medicine not only drives up costs but consumes the time and resources of medical professionals. As you approach the age of medicare you will find fewer doctors willing to take medicare patients because the payments do not cover the costs and there is no protection from increasingly aggressive litigators. Obamacare would make this true of health care universally.

[A.I.]

So this "impartial" judge alludes to the Boston Tea Party in his ruling. Just a coincidence I'm sure.

[KB]

A.I.: And he mentioned James Madison, who is short. I'm short! A coincidence? How naive. We're all out to get you A.I.

I would point out that the Boston Tea Party has been part of American political rhetoric since the Boston Tea Party.

[Miranda]

J.A.: Even if thought is excruciating it does not constitute an action. It is only when a person adds physical effort to his decision that it does. And one could apply your argument to any other scenario.

"In this day of overpopulation, failure to have an abortion is not a mere passivity."
"In this day of violent crime, failure to purchase a gun is not a mere passivity."
"In this day of political unrest, failure to give money to the DNC is not a mere passivity."
"In this day of obesity, failure to exercise is not a mere passivity."

But even if we supposed that not doing something constituted an action, I am not sure we should be comfortable with allowing the government to force us to purchase any good or service it likes. Dr. Blanchard's Green Tea example is particularly apt. Judge Vinson's observation about the motivation of The Boston Tea Party is, perhaps, even better.

A.I.: Is anything the judge said untrue?

[Donald Pay]

I'm not opposed to some tort reform, but it must provide far more money for the injured party. For fifteen years I've been involved in one way or another with brain injury victims who have received insurance settlements from various sorts of accidents (only two strictly from medical malpractice, one involved medical malpractice following a severe auto accident). I can tell you that most of the settlements fall far short of a person's lifetime needs. The huge settlements from punitive damages that make the news are very, very rare. Most people end up in three to five years on SSI or SSDI for life, and various other federal or state programs will cover rent subsidies, medical/dental coverage, transportation costs, in-home or group care, etc. Medical costs for these people are huge, and mostly paid for by Medicaid. If the doctors' insurance doesn't cover it, your taxes will. So, you choose.

[Hoda]

someone is now spamming my posts here it is Buy Term and LOSE the Difference! Whole Life = no mraekt risk? 5% return? tax deferred build up? tax free withdrawal? Zero net cost loans? Self completes if you become disabled? Lawsuit and creditor protected in 43 states? tax free death benefit? No 591/2 rule on distributions? No RMDs? No contribution limits? And people say this is a bad product? Really? The truth be told it very well may be the best financial product you can own!!!