The Ambiguities & Abominations of ObamaCare

Whether or in what form the Patient Protection and Affordable Care Act survives, it is pretty clear that it is a very unusual piece of legislation. Two years into it, it remains about as popular as Newt Gingrich. From a New York Times/CBS poll:

The new poll, conducted last Wednesday through Sunday, finds that 36 percent of Americans approve of the health care law, while 47 percent are opposed. By nearly 2 to 1, those who say they strongly disapprove of the law outnumber those who strongly approve of the legislation. Sixteen percent have no opinion.

I admit that Obama does about 3 points better against Newt, though that 2 to 1 strongly disapprove to strongly approve number does look like Rasmussen's polling on Obama.

It is also clear that not only does no one know yet what is in it, but no one knows yet what it is. Are the penalties attached to the mandate (and upon which the finances depend) a tax or not? The answer is yes, according to the Administration. Again from the Times:

In defending the law, the Justice Department has taken a legal position — that the health care act constitutes a tax — that contradicts the political stance taken by President Obama. To do that, it has relied on legal semantics to argue that the insurance mandate will be enforced through the tax code even though Congress took pains to label it a penalty and not a tax.

After losing that argument in a lower court, the government's lawyers switched positions to agree with the plaintiffs that the litigation was not blocked by the Anti-Injunction Act. But in its brief to the Supreme Court, the administration argued that while the penalty was not a tax that would fall under the Anti-Injunction Act, it should be viewed as a tax when the court considers on Tuesday whether the mandate is permitted under Congress's broad authority to levy taxes.

So…it's not a tax when legally convenient and it should be viewed as a tax when legally convenient. Glad we cleared that up.

This confusion about the legal nature of the PPACA's penalties reinforces the claim that this thing is an altogether new animal in our political zoology. The question the Court hears tomorrow may turn on turn questions. First, can the act's proponents show that allowing the mandate would not transform the commerce clause into an unlimited grant of power? So far I have heard no good arguments that it does not. Second, can the Court strike down the mandate without making any kind of dent in Congress's existing commerce power. I have heard a lot of good arguments to that effect.

George Will draws our attention to one very interesting amicus brief written by Elizabeth Price Foley and Steve Simpson of the Institute for Justice. Here is the punch line.

The individual mandate requires individuals to enter into contracts of insurance that would never be enforceable at common law because they would violate an essential element of all enforceable contracts – mutuality of assent. This principle is now and has always been a basic presupposition of all legally binding contracts. The Founding generation recognized this principle, and so has this Court."

Mutuality of assent is a basic principle of law because it is a basic principle of natural moral reason. Suppose I enter into a contract with Professor Schaff. He agrees to mow my lawn while I am on vacation. I agree to mow his lawn later, while he is on vacation. While he is packing for a grand trip to Sturgis, why am I obligated to fulfill my end of the bargain? Because he fulfilled his? Not exactly. I am obligated to keep my end of the deal because I freely agreed to do so. By contrast, if someone puts a gun to my head and a pen in my hand, nothing I sign creates any moral obligation on my part.

Genuine consent is a fundamental feature of contracts.

The centrality of mutual assent is reinforced by various ancient doctrines that vitiate a contract's enforceability. For example, contracts can be avoided due to fraud, mistake, duress, and incapacity – all of which are grounded in a lack of meaningful consent by one of the parties. In the instance of incapacity – such as mental disability or minority – the individual's inherent inability to give meaningful consent renders his contracts invalid.

We rely on many such doctrines as mutual assent for our basic liberties while frequently forgetting altogether what they are and how they work. President Obama and his party in Congress may have done us all a big favor by reminding us so something we dearly treasure but haven't had to fight for for a long time. The PPACA is an offense against liberty. We live in interesting times.

Comments

[lynn]

Most of what Obama has done is an offense against liberty, and his open mic incident recently just reinforces this. He in effect said "just wait until I get re-elected and I can do anything I want regardless of how it impacts the USA." He has openly said that he will not obey certain laws regarding amnesty and the border. He has ruled by fiat/executive orders with the excuse that Congress wouldn't do it, thus negating the division of powers built into the Constitution. He has said that the Constitution should be a fluid (i.e. flexible, his new word regarding his powers) and that he shouldn't be bound by it. He passed Obamacare thru hook and crook (bribery, coercion, lies). His EPA and Justice Dept are out of control regarding regulations and Fast and Furious. He thumbs his nose at Congress' requests for records as in Fast and Furious investigation. He fuels the fires of racial/economic division in this country. And these are just a few examples of his offenses against liberty.

[Donald Pay]

Mutuality of ascent is a nice legal argument, but how many people legally ascent to their current health care coverage. Virtually no one. Nice try, though.

No one negotiates the details of his or her coverage with Mr. A. Hole at Up Yours Insurance Company. Without a true even-handed negotiation, their is no "mutuality of ascent." The employer presents you with their health care plan and, if you're lucky, maybe a few options and you say yes or no, not because you ascent, but because you have no real choice. It's buy it or you're really screwed if you get sick.

Obamacare tries to rectify that a bit by providing for a cafeteria of plans. You get closer to having mutuality of ascent through Obamacare, than under the current system.

[duggersd]

One of the biggest problems we are dealing with here is we are looking at what is called health insurance as health coverage. In this scenario, we are purchasing a product with the expectation it is going to cover our health coverage. We use "health insurance" to pay for our yearly exams. We use "health insurance" to pay for an office visit when we have a cold. We use "health insurance" to pay for even our cheapest medications, including birth control pills.
This "health insurance" used to cover things that were major medical situations. In fact, it was called major medical insurance. Now, we expect health insurance to pay for everything and then we complain because it is so expensive.

[Bill Fleming]

It's ironic to me that if this were a tax, there would be less resistance to paying it. That's probably what it will become. A tax. Like Medicare. Hey, they might even call it Medicare. Medicare "E" as in "Everybody." What a concept!

[Donald Pay]

I'm not sure where duggersd is getting his information, but it's wrong. Health insurers want people to get yearly exams and take care of minor problems before they become the costly "major medical" issues that cost the insurer real money. Preventive care keeps health care costs lower. Yes, some people go overboard, but that's not the general rule.

[duggersd]

Donald, I did not say insurance companies did not want to pay for yearly exams. I said we use insurance to do that. What we have is no longer insurance but the way we pay for health care. If you would like to see health care costs go down, quit having insurance companies pay for all kinds of routine medical procedures. Regardless, it should be up to the insurance company to decide whether to offer yearly exams.

[Donald Pay]

duggersd,

You aren't making any sense. You have if exactly backward. It costs more to fix big problems than to to fix the little problem before they becomes big problems. Really, if we did it your way, costs would skyrocket.

[duggersd]

Donald,
It is not up to the government to decide whether an insurance company should pay for a certain procedure or not. It is dependent upon a contract between the insurance company and the insured. If a company wants to pay for certain procedures and the insured wants to pay for that coverage, no problem. If the company does not want to cover those procedures, then the insured can go to another company. I personally would prefer to pay for a yearly exam on my own, or have a co-pay that makes me at least partially responsible for it and pay less for coverage than to pay the Cadillac price of the insurance company paying for everything. BTW, if I am wrong, then why is it since our health care system has been gravitating towards what you believe it should be that health care costs are skyrocketing? I submit if we had to pay for more of our own coverage, costs would go down because people would be less likely to abuse the system.

[Mark Anderson]

They will be very interesting times, if the Supreme Court throws out Obamacare, now the official name of the Affordable Care Act according to the White House. Will insurance companies be able to go after families who have had children covered until they are 26 and myriad other popular provisions of the act that have changed insurance coverage in the past two years. If the act is thrown out as unconstitutional, will the insurance coverage that it changed be seen as void, and the insurance company lawyers be able to go after that coverage from the insured?

[Donald Pay]

duggersd,

Yes, health insurance is regulated. You might like to think your "major medical" plan would actually cover you, but the evidence suggests otherwise. People who purchase these plans end up in bankruptcy because the insurance company finds a way to exclude them after years of paying into it. So, you lose all your premiums, and I get to pick up the costs for your "major medical" procedures, either through cost shifting or through tax paid subsidies.

You need to get into the real world rather than playing around in your hallucinations.

[Stan Gibilisco]

As I see it, costs skyrocket because demand exceeds supply. In the case of medical care, people expect more out of the system than it can reasonably deliver in its present form or in any other form.

For the moment, I am healthy, as far as I know. If I get sick, usually I nurse myself. But the day will come (unless I get hit by lightning or killed in a vehicle crash or something) when I need to take advantage of the health care system.

I don't know whether Dakotacare or Medicare will be the institution that I fall back on at that time; I can assure you, however, that if I leave South Dakota I will not fall for some fly-by-night scam outfit (and there are plenty). In any event, I realize that I might develop some condition that will (a) kill me if not treated, (b) lend itself to treatment costing huge sums of money, and (c) force me to choose between burdening the system or just going ahead and kicking the bucket.

As technology gets more and more sophisticated, it costs more and more to render the best treatments available. Did you hear about that guy who got a face transplant recently? It took a team of more than 100 surgeons 36 hours to to it. Now I wonder how much that actually cost, and who paid for it? Was the guy super-rich, and did he pay for it all himself? I doubt it. So we paid for it, one way or another, through insurance premiums or government subsidies or whatever.

No matter what system we have, and no matter what level of technology we evolve into, we'll always face this same problem, a condundrum where we have to decide, individually and as a society, what we are willing to pay, and to what extent we are willing to help others as opposed to simply fending for ourselves.

I can see both sides of the individual mandate.

On the one hand, if everyone has coverge or pays a fine (or tax or fee or penalty or whatever), then everyone contributes. Fair enough. If the mandate is overturned, then I can see how healthy people might opt out, and then expect society to come to their rescue when they get sick. Another point for the mandate!

But I still have a great deal of trouble with the notion that our government can force us to take any sort of positive action, be it buying health insurance or eating broccoli (which I happen to love, by the way) or eating kidney (which I cannot stand) or, for that matter, voting or working out or paying homage to the King.

What conclusion have I reached here? None. None at all.

[Ken Blanchard]

Donald: just because you don't like a contract, doesn't mean that it isn't voluntary. However, if it isn't voluntary, then it isn't a contract.

Mark: you raise some interesting questions. Perhaps the answers lie in finding ways to solve the problems that aren't offensive to Constitutional liberties.

Stan: good to see you back. You provide a very thoughtful catalog of conundrums.

Bill: General taxation has a number of virtues. One is that we can add up the costs. It may be that Congress created more problems than it solved by trying to hide the costs of health care reform. I continue to think that the chief problem in the reform effort was a failure to get straight what we were trying to do.

[Mark Anderson]

All the constitutional issues have been raised as a way to break down Obamacare. After all these are Republican ideas that weren't seen as unconstitutional until Obamacare. Then the activity started. Maybe it is unconstitutional, but either way, losing your freedom isn't going to happen because of Obamacare. Republicans who say it's about freedom are the same Republicans who at a state level, force women to wait to have an abortion, who force them to have ultrasounds, etc. I particularly like the law where the doctor is supposed to lie to you if your fetus has abnormalities, ah, Arizona. Republicans don't mind coming between a woman and her doctor in many, many instances. How's that for freedom.