Of Commerce & Consent

I haven't the time yet to read Natl. Federation of Independent Business v. Sebelius, and I won't for some time. For that reason I am not yet prepared to endorse Chief Justice Robert's opinion that the PPACA is permissible under Congress's tax power.

Relying on the many reports about the opinion, I am willing to say this much: if the PPACA mandate is constitutional, it has to be so under the tax power and cannot be so under the commerce power.

This is clear from a comment posted by one of my cherished interlocutors, A.I.

You bring up one the worst arguments against the law in saying [that] government is forcing us to use and pay for health care. It's our own accident-prone and disease-susceptible bodies that force us to use health care. Should we then not pay for it...at least to the extent we can? Sure, we could choose to leave particular malady untreated. We could also choose to put our tongue in a light socket.

I reply: no. A.I. is rather promiscuous in his use of "we" and "us". Let me sort it out. Our "accident-prone and disease-susceptible bodies" do not "force us to use health care." People have a right to refuse treatment.

The argument A.I. is drawing on goes as follows. Everyone is part of the health care market because no one will in fact be denied treatment. Since everyone thus benefits from the system, forcing everyone to shoulder his or her fair share of the costs is merely a matter of regulating the market. That is why the mandate was thought to come under the commerce clause.

I reply that people become part of the market for health services in two ways. One is to purchase health insurance or pay directly for medical care. Another way is to decline to purchase health insurance or pay for services and instead show up at hospital emergency room when the need arises. People who chose to do the latter are indeed putting a burden on the rest of us.

However, that is because we choose to pay for their treatment. That is our decision, not theirs. We could, logically, decline to open our medical facilities to people who have been irresponsible. I am glad that we do not do so, but our decision to cover them is our choice and so imposes no moral obligations on them. To put the point more clearly, extending a benefit to someone free of charge means you can't turn around and shake them down for the bill. Otherwise, you could compel anyone to enter any market you choose and then claim a chunk of their paycheck, whether they like it or not, merely by offering them some relevant benefit.

The source of legal and political obligations is consent. Since we the people have decided to take care of the twenty something, who thinks he is going to be young and healthy forever and so doesn't have to bother with health insurance, we the people have to pay for it. That is why the mandate looks permissible as an exercise of the tax power but not of the commerce power. Citizens of this Republic tacitly agree to pay such taxes as their Congress authorizes. Persons who accept free medical care have not agreed, tacitly or otherwise, to be part of the health care market.

Comments

[A.I.]

Yes, people do have the right to refuse treatment. But, as I attempted to point out, that is absurd on a level akin to exercising one's right to insert his/her tongue into a light socket. (Note, no "we" or "us".) It is in fact so absurd as to not even be germane to any sentient discussion of this issue.

I personally have never much cared whether the mandate was called a tax penalty or something else. Obviously Obama and others feared the tax word because ACA opponents would use it as a cudgel against reform and Republican's immediate move to deem it the "largest tax increase ever imposed" shows their concern was warranted. However, I have never seen a poll that asked: "If given the choice, would you prefer imposing a tax penalty on those who can afford health insurance but refuse to buy it or to allow them to receive care at the expense of those who do buy insurance? I think the answer is obvious--at least among those who are insured.

[Donald Pay]

Wrong, KB, as usual. Your right to refuse treatment is circumscribed by laws and medical ethics. You have a limited right to refuse treatment. Refusing medical treatment is not the same as refusing certain procedures, or opting for others. You can refuse to allow a medical professional to stop your blood loss, but when you pass out from that blood loss, you have lost that right, unless you have some sort of advanced directive, and you will be treated immediately. Nice try, and thank God you didn't go into a medical profession.

[A.I.]

Good clarification Donald. I too am wrong in the context you put refusing treatment. I was thinking KB was referring to someone who would suffer and/or die in secret--kind of like an old dog crawling under the front porch to die. Of course his assertion is preposterous in either case.

And by the way KB, the that you added in brackets when quoting my post would have been struck as a 'weasel word' by an old editor of mine as the word that is understood in the construct of that particular sentence. One need not include [a] that which is understood.

[Donald Pay]

You are also wrong about payment. We don't choose to pay for people who can't pay. From the moment you walk into the emergency service, you are using medical professionals and administrative personnel who are assessing your needs providing you services. You are required to pay for those services, or at least everyone is going to be handed a bill for the charges incurred under our fee for service system.

If you don't have insurance, your method of payment usually involves some arrangement to pay a small amount monthly, either to the hospital or to the government agency who pays your bills. The charges may be reduced through negotiations. No one gets free care, although many people just don't have the money to pay their monthly charge.

When I worked for a weekly paper in the 1990s, I did a story about a young woman with no health insurance (job didn't provide it). She had a medical issue that required an operation. Before she left the hospital the first time, she was handed a bill. Then she got a bill from several other medical professionals. She was so traumatized and scared by the bills that she almost refused to go back to the hospital when a post-operative infection delayed her recovery. She lost her job because she couldn't return to work in one week they gave her to recover. She had to pay the hospitals and doctors what she could, which wasn't much, and the government picked up the rest. Because there was a medical error involved, the docs and hospitals knocked a lot off the bill. Because she lost her job, she also couldn't pay rent and was evicted. She ended up homeless, probably doing tricks for spare change and in a motel paid for by taxpayers.

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