The Affordable Care Act can’t get its act together

Intrepid reader Donald Pays has this comment on my last post:

What I was struck by in the oral arguments was the seeming ignorance of Scalia. At least I got the feeling the "liberal" justices and Kennedy were taking their jobs seriously. Even Alito and Roberts seemed to know a little bit about what was going on.

It would have been helpful if Donald had provided at least a bit of evidence for his complaint. Scott Johnson at Powerline has an actual example of a Justice who didn't seem to know what he was talking about.

Referring to the key New Deal Commerce Clause case of Wickard v. Filburn, Breyer asked, for example: "Didn't they make that man growing his own wheat go into the market and buy other wheat for his — for his cows?"

As Johnson points out, this is an absurd reading of Wickard. The government did not in any sense force Filburn to enter a market. Rather, Congress used the commerce power to prohibit Filburn from growing wheat for his own use, in excess of quotas that Congress had imposed. Perhaps Breyer's comment is, as Johnson says, evidence of "sheer intellectual laziness." I would not be so harsh. It is evidence of a justice trying to find a precedent for his preferred outcome where no such precedent exists.

I would also point out that Wickard is not a very helpful source, either judicially or politically. Would most Americans accept the idea that Congress could prohibit every single one of us from growing roses in our back yards in order to benefit florists? If this is indeed constitutional, do we want to say that Congress could further and compel farmers to buy wheat or sweethearts to buy roses?

Reader Bill Fleming has this:

The point is, we already have a default form of Universal Health Care in the US. Problem is, it is the most expensive, least intentional, purely reactionary form of it imaginable…

Reader A.I. makes a similar point:

Our current laws (perfectly constitutional or at least facing no court challenge) force hospitals to treat those who can't pay for their care. The hospitals pass those costs along to those who can pay because they have insurance. And those with insurance ended up paying more because of this cost shifting…

Thus if the court decides against the individual mandate, they will have reinforced an individual "right" for those who don't buy insurance to mooch off the rest of us…

I think that there is merit to both points. Notice, however, what Bill concedes: we already have universal health care! That is quite correct. Americans are not denied medical care because of any inability to pay. So whatever the expense and expanded government powers in PPACA get us, it isn't more health care for more people. That is contrary to most of the rhetoric in favor of the bill. Is the system going to become more efficient and less expensive under the act? It was evident from the beginning that no real cost reductions were built into it.

Likewise, A.I.'s point is contrary to the usual rhetoric, according to which the uninsured are victims. A.I. thinks they are moochers. So we are going to compel those free riders to pay their fair share. Okay. Does that mean that health insurance costs will go down from those of us who do pay for health insurance? In fact, the opposite is almost certainly going to be true. Whatever money is shaken out of the pockets of the moochers, it will be spent by the Feds on other things.

The proponents of the PPACA are constantly at odds with themselves about the effects and rational basis of the legislation. Eugene Kontorovich has this, at the Volokh Conspiracy:

There is a serious inconsistency between the government's arguments for the mandate and for the Medicaid expansion. In a nutshell, these arguments make opposite assumptions about the effect of financial duress on states' ability to execute their policy preferences. Defending the mandate, the government says states are individually incompetent to regulate insurance, because the first state to adopt generous rules would be inundated with the sick, and forced to abandon its policy. This is a basic race to the bottom story and has been around in Commerce Clause cases since the New Deal.

Crucially, the argument takes financial realities as dispositive: states cannot realistically choose to experiment with medical insurance individually because it would be ruinous. The economic effects mean that states do not really have the power to choose individual regulatory regimes.

Yet turning to the Spending power, the government asks us to believe that states can realistically turn down federal Medicaid funds, though it would be at least as ruinous if not more. Either the prospect of massive losses makes a state's ability to pursue a certain course illusory or it does not.

ObamaCare's defenders are not going goofy on Supreme Court precedents and constantly contradicting themselves because they are incompetent or intellectually lazy. The problem is that they can't openly acknowledge their real motivation. What they really want is not to save the pitiful uninsured or to make the healthcare system more efficient or, as the President initially argued, to reduce the burden of healthcare on the federal budget. What they want is a triumph of federal power over markets. If it survives, that is the one thing that the PPACA will surely achieve.

Comments

[Bill Fleming]

Agreed. It doesn't have to be so complicated.

The reason it is, is that we keep confusing apples with oranges (health care delivery with health care insurance).

Via the social contract, and as reflected the 13th and 14th Amendments, health care services (note: not insurance) are a fundamental human right.

That's why we have the de facto Universal Health Care system I mentioned.

You can go to the emergency room even if you're not a US citizen.

Now, following that, and still looking at the reasoning behind the abovementioned amendments, a person shouldn't have to go broke just because they get sick. In other words, while everybody might not be in the health INSURANCE marketplace, everyone IS in the health care market place*.

And that's where the Commerce Clause comes it.

It stipulates how our health care services are to be paid for (i.e. in advance.)

Simple.

But of course, they didn't ask me to go to DC to make the argument.

Sigh.
___________________________

* raise your hand if you know someone who has never been to see a health care professional.

[Bill Fleming]

Someone with more ambition and a deeper interest in writing a novel than I have at the moment could work aganst the following outline to demonstrate how the US finally adopts a Single Payer, Universal Health Care System in fairly short order unpon passage of the PPACA:

1. SCOTUS upholds constitutionality of the act.

2. Employers examine their options and opt out, sending their employees to the exchanges and paying the fine (tax to the IRS) instead.

3. Employees in turn find the exchanges less attractive than paying the fine (tax to the IRS) and opt out as well.

4. Most health insurance companies go out of business or become specialty insurors.

5. Medicare E becomes the preferred health care delivery system in the US.

6. We all live happily ever after.

[Donald Pay]

The health insurance mandate was an invention of the Heritage Foundation and was proposed by Republicans. It was one way to get to universal coverage, which everyone, Democrats and Republicans, agrees is what needs to be done to reduce costs and prevent cost shifting which escalates the cost of health care and health care coverage. Obviously, if KB is now to be believed, Republicans and conservatives have been wrong on health care for decades, and liberals who knew the mandate had constitutional and practical issues were correct. Liberals have always thought that the insurance mandate was not the best way to cover the most people. It was only reluctantly that Democrats agreed to the health insurance mandate.

I think it is really up to you, and the rest of the Republican and conservative cognoscenti, to explain why you supported a concept for so long that you believe was so obviously unconstitutional.

[Ken Blanchard]

Bill: the authors of the 13th and 14th Amendments would be very surprised to learn that they were voting for the health insurance mandate. No U.S. Court, so far as I know, has ever recognized health care as a right implicit in the Constitution.
I have no doubt that you would like it to be such, but if wishes were horses we'd all be up to our noses in horse hockey.

We have the universal health care system you mention because WE decide to provide everyone with health care. That is OUR decision and, as such, does not create any obligation on the part of the beneficiaries. Contracts are obligatory only when entered into freely. What your argument amounts to this: WE can compel anyone to do pretty much anything WE want if We think fit.

[Ken Blanchard]

Donald: has hard as it might be for you to imagine, sometimes people change their minds. When he was running for office, Barack Obama rejected the idea of a mandate. He was against it before he was for it. Conservatives went the opposite way, because we thought it through.

[Donald Pay]

See, KB, the difference is Obama and liberals reluctantly changed position so that we could cover everyone, because that was what the Republicans said was theobjective of the health care mandate. So, what you thought through was what, exactly? What you are telling us is you thought through the position that you had for decades, what Mitt Romney advocated, only after Obama and Democrats reluctantly agreed to it, and got it passed. Your sputtering sounds like pure bullshit to me. There is no evidence that anyone brought up any of these objections prior to Obama taking them up.

So, now tell us what your plan is.

But wait. Before you tell us your plan, please explain why anyone shold believe anything the Republicans say they will do, say they are for. Have you thought through anything you are for. Isn't it just a handy excuse to say "we thought through it?' That's just pure bullshit.

[A.I.]

As is all too often the case, you again presume to know the motivations of those you disagree with KB. Contrary to your unfounded generalization, this "Obamacare" supporter does want to "save the pitiful uninsured or to make the healthcare system more efficient or, as the President initially argued, to reduce the burden of healthcare on the federal budget." It is true that I also want "a triumph of federal power over markets" if that means health insurers are forced/enabled to cover more people at reduced cost with greater reliability while offering more choices to consumers. In large part, Obamcare "enables" by expanding the insured pool and forces by increasing regulation. While not perfect, it is a quantum leap forward from where we are/were.

Rather than the "government takeover of health care" so many on the Right characterize is as, Obamacare is a joint government/private market effort to address many of the problems endemic in the U.S. healthcare system. Despite partisan twisting of the the numbers, the CBO continues to score the program as a money saver. Meanwhile, analysis of Romneycare finds the program Obamcare is based on is achieving its goals in Massachusetts while enjoying strong public support.

I am reminded of a recent editorial cartoon in which an Affordable Care Act detractor is questioned as to whether he likes various aspects of the program. After considering each aspect, he concludes the only part of Obamacare he doesn't like is Obama. That will be the extent of my foray into presuming the motivations of many who disagree with me regarding the act.

[Bill Fleming]

Yes, that is correct, Ken, we can. We can send people to war, we can execute them, we can make them buy licenses plates, pay income tax, lie about their sexual preferences when they're in the military, grow crops, not grow crops, refrain from alcohol and drugs, have slaves, not have slaves, take their land, vote, not-vote, put up with each others' religious beliefs... all of those things. Didn't you already know that?

[Bill Fleming]

As for the 13th and 14th Amendments, Ken, if the GOP and the SCOTUS can use them to justify the appointment of a President and an argument to protect a zygote and a blastocyst from the woman who carries it in her womb or the laboratory to whon a couple has entrusted it, it can most certainly be used to justify equal protection for people with diseases, accident victims, etc, etc. Methinks a dull haze has grown over your intellect on this issue, preventing you from discerning the forest from the trees. You have, like your GOP brethern it seems, become developed a red/blue color deficience and can only see the red side. Either that, or you have become a a radical, right-wing anarchist. I suspect it is the former and not the latter.

[duggersd]

Bill, your bastardization of the commerce clause is to the US Constitution what Al Qaeda is to Islam. Interpreting the commerce clause to the degree that you are is not what anybody had any intentions of when the Constitution was written. Health care is a commodity, not a right. If health care was a right, then we could put a gun to a doctor's head and force him/her to provide service. We have chosen to provide anybody who lives within the distance of a hospital access to health care, regardless of the ability to pay. That may be a mistake as too many people have come to take advantage of the good nature of American citizens. Perhaps if people who chose not to purchase insurance were refused service, there would be fewer people choosing to steal from those of us who do. If SCOTA rules that the Congress has the ability to force Americans to purchase something whether they want it or not, then there is no limit to what Congress can do. Congress could even force you to buy a Vote Romney bumper sticker.

[Bill Fleming]

DuggerSD, the abiding difference between your read on the Constitution and mine is that I maintain it is an outgrowth of unwritten natural rights and the longstanding human social contract.

I would argue that the Constution "bastardized" that (knowingly) to some degree, and that the intention of the document was to "form a more perfect union" not "the perfect" one. A

nd I already know you are s stingy, self-righteous bastard, so we don't really have to dwell on that, other than to say that we need a written social contract to protecte ourselves from people like you. ;^)

[duggersd]

And we all know you make things mean what you want them to rather than what they do. Unlike most liberals, I do not see the Constitution as a "living" document. If you do, perhaps you would like to come play poker at my place with my "living" poker rules.
It is interesting you talk about how someone should not have to go broke because he or she gets sick, but you are willing to make the rest of the country go broke because he or she gets sick. You have no idea as to whether I am a stingy bastard as you have know idea as to what my giving of cash and time is. The difference between my "generosity" and yours is I give my own money and my own time. You give other peoples' money. BTW, BHO is now using the "personal responsibility" clause of the monstrosity that is costing twice what you and he said it would instead of the "personal mandate". The difference between my personal responsibility and his and yours is in my world, if you are irresponsible, it costs you. And yes, if you do not take steps to be covered, you wind up broke.

[Bill Fleming]

I have to say, I've never seen the GOP rise to the defense of the slackers with quite such zeal before. It bring a tear to me eye.

[duggersd]

Bill, one of the biggest problems with your reasoning has to do with what you believe is a "social contract". The Declaration of Independence talks of life, liberty and the pursuit of happiness, not life, liberty and happiness. The Constitution as the founding document was written in a way as to limit the power and the scope of the federal government. The social contract has to do with the equality of opportunity, not the equality of results as you liberal seem to espouse. The only people who defends the slackers are the liberals who keep finding new things the government can do for the people. These are things that are best left to the individuals. This includes health care. Health care is a product, not a right. A right is the right to free speech. A right is a right to an attorney. Health care is best left to the individual. Are there some people who cannot get health care on their own? Yes, but those can be helped much easier and less costlier than by destroying the current system. So, when you want to give so much to so many, please do it with your own money.

[Bill Fleming]

Okay, DuggerSD, when you're in a car wreck, be sure to put a sign on your self that says, "don't help me. I can get to the hospital myself, thank you very much."

[duggersd]

OK, Bill. I will do that when I sign something that says I do not have health insurance and I do not pay the taxes that cover those services. Try just for once to compare apples to apples. And try just for once to give away your own money. And you call me a stingy bastard.

[Bill Fleming]

I pay for both my employees' and my insurance DuggerSD. Always have. Plus I pick up half of their SS payments. I own a business, remember?

[duggersd]

You do not pick up 1/2 of their SD payments. You write a check for it, but that is part of their compensation. You do not pay for your employees' insurance. That is part of their compensation. I figured you would know that owning your own business.

[Bill Fleming]

Yes, that's another way to look at it alright. I've been having a dickens of a time convincing one of my Catholic conservative friends of that, btw. He SWEARS it's the Church who has to pay for contraceptives (employers too) and that they shouldn't have to do it if it goes against their religion. I'm glad I finally found a conservative who agrees with me about that. Thanks DuggerSD.

[duggersd]

You could choose not to pay for your employees' insurance. Then you could charge less to your clients. Your employees could then decide if it was worthwhile working for some skinflint such as you. The Church is not being given a choice in this matter. It is being forced to pay for something that is against its morals. Sorry, but this is not a conservative who agrees with you. Again, the only way you are able to do that is by twisting what is said into what you want it to say. Come into the real world some day, Bill. It isn't that bad.