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Posted at 5:33 PM ET, 02/ 1/2011

The policy questions behind the legal questions

By Ezra Klein

Some of the legal questions related to the individual mandate are, at least partially, policy questions. In particular, what does the individual mandate do? And can the law stand without it?

The argument conservatives are making right now is that the individual mandate regulates "economic inactivity." That's not a description anyone had heard of it back when conservatives were co-sponsoring bills with the individual mandate, and it's not what the policy's creator had in mind when he developed it. But that doesn't make it untrue.

To believe it, however, you need to adopt a very narrow definition of what's being affected here: Namely, the decision to purchase or not purchase health-care insurance. The more traditional view is that the individual mandate is one of a slew of rules and regulations bringing order to something much broader: The American health-care system, which all of us participate in. That's the view of the 38 health economists and academics who signed this brief (pdf). "There is no such thing as 'inactivity' or non-participation in the health care market," they wrote. "As the District Court" -- which ruled for the Affordable Care Act -- "recognized, virtually all Americans will, at some time during their life, require health care, either because of illness, accident, or the wear and tear of age."

Because health services are so expensive, the costs are defrayed over many years. That's what insurance does. And because we are a humane society, we have rules and regulations in place to ensure that people can get treated even if they don't have insurance. In that way, you may not be interested in the health-care system, but if you get hit by a bus, the health-care system is interested in you -- and that's true even though you weren't making an economic choice to become "active" in the health-care system when you stepped into the street. You were, by virtue of our laws and regulations and taxes, already an active participant. The authors of the brief make this point -- and its connection to the individual mandate -- well:

The requirement to obtain a minimal level of health insurance is predicated on the unique characteristics of the health care market -- the unavoidable need for medical care; the unpredictability of such need; the high cost of care; the inability of providers to refuse to provide care in emergency situations; and the very significant cost-shifting that underlies the way medical care is paid for in this country. Those characteristics do not obtain in other markets and, without them, the predicate for the kind of regulation adopted in Section 1501 does not exist. Hence, affirming Congress’ power to adopt Section 1501 will not open the door to unfettered expansion of federal power over individual liberty, as Appellants fear.

To make this more concrete, when an uninsured person breaks a leg and needs hospital care, that care is paid for by the rest of us. It'd be a bit odd for your economic inactivity to cost me money. But your decision to remain without insurance does cost me money, because you're an active consumer of health-care risk and an active participant on a health-care market that affords you certain benefits. When you don't purchase insurance, you've not decided against participating in the American health-care system. You're just not participating responsibly. To quote Mitt Romney:

Some of my libertarian friends balk at what looks like an individual mandate. But remember, someone has to pay for the health care that must, by law, be provided: Either the individual pays or the taxpayers pay. A free ride on the government is not libertarian.

Then there's the question of severability -- can the law work without the mandate? The legislation does not specifically say that it can. And the Obama administration, in a calculated gamble to persuade the Court that the mandate passes constitutional muster through the "necessary and proper" clause, is currently arguing that it can't. This, at least in part, led Judge Vinson to void the entire bill. "In the final analysis, this Act has been analogized to a finely crafted watch,and that seems to fit," he wrote. "It has approximately 450 separate pieces, but one essential piece (the individual mandate) is defective and must be removed. It cannot function as originally designed."

The irony of all this is that one of the central arguments in the Democratic campaign for the presidency was between the Obama campaign, which didn't think health-care reform required an individual mandate, and the Clinton campaign, which thought it did. I was on Clinton's side in that debate, but the case is more nuanced than the Obama team allowed then or is admitting now. The legislation will work much better with an individual mandate. But many people will be covered, and many goals achieved, in the absence of the mandate.

By Ezra Klein  | February 1, 2011; 5:33 PM ET
Categories:  Health Reform  
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Comments

The mandate hasn't even kicked in yet and already the unions and other favored groups have received over *700* waivers from the federal government.
If it's so good....why do so many seek waivers? Why are they granted? Doesn't this make the law arbitrary?

Channeling Leona Helmsly: "ObamaCare is for 'little people'.

Posted by: WrongfulDeath | February 1, 2011 6:11 PM | Report abuse

The finer points seems to be that (a) Sovereign States are, without question, within their rights to force individuals to do certain things (get vaccinations, purchase health insurance, purchase woolen cloaks for the dead [the example used by Blackstone], purchase broccoli, etc.) whereas the federal government can, at present, implement regulations only when an individual willfully and affirmatively undertakes activity affecting interstate or international trade, (b) the act of living is not willful and affirmative engagement in interstate or international trade -- it is possible for a person to live his whole life without engaging in interstate or international trade, (c) Congress has the power to levy certain types direct and indirect taxes, (d) the Obama/Pelosi Regime did not want to be branded as enacting the most massive tax known in history.

Item D -- the not wishing to be known as a Tax-And-Spend Regime -- is the kicker. As mentioned in an interview earlier today, there is no question that the Obama/Pelosi Regime could have implemented a capitation tax: the PPACA could have worked if _everyone_ (indigents included) were forced to pay a health care tax in addition to existing Medicare and Medicaid taxes. Of course, the Obama/Pelosi Regime had promised no additional taxes on the middle class, so had to couch the PPACA tax as something-other-than a middle class tax increase.

Why not just call a tax a tax? Everybody wants more taxes, right?

How about a compromise -- one based on a previous citation by Ezra Klein. Why not simply put a check-box on each tax form and on each welfare check allowing the taxpayer or welfare recipient to devote an extra 10% of his income to Universal Coverage? Let the funds accrue just like the previously cited merchant marine funds accrued... once there's enough in the pot, you'd have Universal Coverage. Since everybody's in favor of higher taxes and universal coverage, the funds would build up quick, right?? Everybody's on board with paying a little more, right, so the checkoff will just confirm "the obvious", right?

Posted by: rmgregory | February 1, 2011 6:27 PM | Report abuse

If invalidating the mandate would make private universal insurance infeasible, wouldn't that push policy toward Medicare for all? Why wouldn't that be a GOOD thing?

Posted by: LTLamberton | February 1, 2011 6:29 PM | Report abuse

Rationalization. You will never come up with a constitutional angle for making people buy private health insurance at the federal level.

Does freedom mean anything at all to you, Ezra?

Posted by: whoisjohngaltcom | February 1, 2011 6:31 PM | Report abuse

--*back when conservatives were co-sponsoring bills with the individual mandate*--

Klein has turned into a one trick pony. That would appear to be about the only argument he has today.

Just because conservatives signed onto loony tune proposals, Klein, doesn't make loony tune proposals less loony tune. Ask any Tea Partier whether the GOP strayed from its traditional principles and you'll get an earful. The promotion of the mandate at one time is a clear example. Get over it. "They did it, too" is not an argument. It's a tantrum. But, then, you have been having your faced rubbed in it around the net, lately.

Posted by: msoja | February 1, 2011 6:38 PM | Report abuse

"Some of my libertarian friends balk at what looks like an individual mandate. But remember, someone has to pay for the health care that must, by law, be provided: Either the individual pays or the taxpayers pay. A free ride on the government is not libertarian."

No, a free ride on the government is not libertarian.

Get rid of the mandate on providers to provide emergency care. Problem solved.

Posted by: justin84 | February 1, 2011 6:40 PM | Report abuse

--*Does freedom mean anything at all to you, Ezra?*--

What's freedom when you want to give something that doesn't belong to you to people who don't want it?

Klein is on a mission, and freedom doesn't figure into it.

Posted by: msoja | February 1, 2011 6:51 PM | Report abuse

"No, a free ride on the government is not libertarian."

People are paying for private insurance. That's no free ride.

... It's really hard defending this thing against those who, under a President Romney, would be vigorously supporting it. The lesson from all this should be that there's always partisanship no matter what you do, so parties better align policy proposals with actual policy preferences.

Posted by: Chris_ | February 1, 2011 6:52 PM | Report abuse

--*Because health services are so expensive, the costs are defrayed over many years. That's what insurance does.*--

Except for the little problem of most people living their entire lives without incurring catastrophic-size bills. The money most people send off to the insurance companies is spent by someone else. The more people coerced into the system, the more it's true, since it's no longer a risk pool, but straight redistribution.

So, Klein, it's a lie to imply that endless insurance payments are some sort of down payment on health care use that one will unavoidably require at some point in life.

Posted by: msoja | February 1, 2011 7:02 PM | Report abuse

Let's not forget that the individual mandate has absolutely nothing to do with the Medicare cuts working right. Or with fixing the doughnut hole. Or with the ACOs operating efficiently. Or with the excise tax working correctly.

Judge Vinson applied a two-part test for the severability issue: (1) can other parts of the legislation work without the mandate; and (2) what was congress's intent. As for prong one, the cost cuts, revenue enhancements, and pilot projects don't need the mandate to work. As for prong 2, it's purely speculative that Congress wouldn't want pieces to stand that make a major step in reducing long term health care costs and cost inflation, especially when cost cuts were as big, if not a bigger, part of the debate as guaranteed issue. That this judge threw out all those pieces anyway proves how poorly reasoned is his decision and what judicial overreach it is. And that no conservatives point this out show that either they don't understand what this legislation contains, or that they really don't care about judicial activism or deficit cutting (or all of the above).

Posted by: JamesCody | February 1, 2011 7:08 PM | Report abuse

--*[Y]ou may not be interested in the health-care system, but if you get hit by a bus, the health-care system is interested in you -- and that's true even though you weren't making an economic choice to become "active" in the health-care system when you stepped into the street.*--

What malarkey. The states already take care of that problem, Klein, when they mandate vehicle insurance. Outside that are civil and criminal remedies. AND one's own personal responsibility.

Go one, dream up another example.

Posted by: msoja | February 1, 2011 7:12 PM | Report abuse

Here's a pure policy question about the mandate. Is it true that the "individual" mandate requires insurance coverage for children? (If so, I wonder how many are opposed to this, as opposed to an "individual" mandate.)

Posted by: pjro | February 1, 2011 7:55 PM | Report abuse

Is it time to admit that this was a Pyrrhic victory and get the hell out? to refresh your memory:

"The armies separated; and, it is said, Pyrrhus replied to one that gave him joy of his victory that one more such victory would utterly undo him. For he had lost a great part of the forces he brought with him, (60 seats)and almost all his particular friends and principal commanders (Pelosi); there were no others there to make recruits, and he found the confederates in Italy (Blue Dog Democrats) backward. On the other hand, as from a fountain continually flowing out of the city, the Roman camp was quickly and plentifully filled up with fresh men, (the Tea Party)not at all abating in courage for the loss they sustained, but even from their very anger gaining new force and resolution to go on with the war. – Plutarch [1]"


The solution, how about Obama as Henry IV the first Bourbon monarch of France?

"On 25 July 1593, with the encouragement of the great love of his life, Gabrielle d'Estrées, Henry permanently renounced Protestantism, thus earning the resentment of the Huguenots and of his former ally, Queen Elizabeth I of England. He was said to have declared that Paris vaut bien une messe ("Paris is well worth a Mass"),[13][14][15] but there is much doubt whether he actually said this himself.[16][17] His entrance into the Roman Catholic Church secured for him the allegiance of the vast majority of his subjects and he was crowned King of France at the Cathedral of Chartres on 27 February 1594. In 1598, however, he declared the Edict of Nantes, which gave circumscribed toleration to the Huguenots.[18]"

So in giving up Protestantism, he not only secured the throne of France for the next 200 year to his successors, but was also able to relieve the oppression of the Protestant minority too.

To paraphrase, "the Presidency is well worth a repeal".

Posted by: johnmarshall5446 | February 1, 2011 8:03 PM | Report abuse

There is a further option that should have been included. You can opt out for say a minimum of 5 years. Coming back has an exclusion of pre-existing conditions. But if you opt out you have no back up care - no ER care etc.

This option would provide the "freedom" some claim to want.

Posted by: sailor0245 | February 1, 2011 8:23 PM | Report abuse

The "freedom" lovers in this case are all 20-year-old dimbulbertarians. They wouldn't know life if it bit em in the behind.

Posted by: Lee_A_Arnold | February 1, 2011 8:26 PM | Report abuse

*Get rid of the mandate on providers to provide emergency care. Problem solved.*

This is why your vision of the future is called a libertarian dystopia.

Posted by: constans | February 1, 2011 8:43 PM | Report abuse

"People are paying for private insurance. That's no free ride."

The issue at hand was that if you have an emergency and do not have insurance or money, the ER is required by law to treat you and taxpayers foot the bill (there doesn't appear to be any government reimbursement provision in EMTALA, so I'm assuming that Romney was referring to cost shifting when he claimed taxpayers pick up the bill).

That said, I'll address your assertion. Are people paying for their own insurance through ACA? We can conclude that for many, the answer is no.

Clearly, people on Medicaid will not be paying, so we have a free ride courtesy of the government right there.

What about those in the exchanges?

Take a family of four with a 40 year old head of household in a medium cost area. The bill for their health insurance in 2014 will be $12,130, of which they pay $1,982. So, while this family is making token payments towards their health insurance, the government is paying more than 5x what the family does. Over a decade, that's $120,765 worth of subsidies for $140,585 worth of insurance (much more, actually, because health care costs will rise from 2014-2023).

http://healthreform.kff.org/subsidycalculator.aspx#incomeAgeTables

So, while it's not exactly a 'free' ride, the government does end up paying 86% of the bill. It pays more if this family has a lot of health care expenses, as there are also subsidies to effectively reduce the out of pocket max.

"It's really hard defending this thing against those who, under a President Romney, would be vigorously supporting it."

Romney's a disgrace, and I'm certain I'd oppose nearly all of his policy initiatives were he President.

Posted by: justin84 | February 1, 2011 8:43 PM | Report abuse

--*The "freedom" lovers in this case are all 20-year-old dimbulbertarians.*--

If you're wrong about that, I suppose everyone is still supposed to respect your view in other areas, right?

Posted by: msoja | February 1, 2011 8:58 PM | Report abuse

"If you're wrong about that, I suppose everyone is still supposed to respect your view in other areas, right?"

Given your relentless exertions that healthcare reformers are commie control freaks, this is a joke, right?

Posted by: Lee_A_Arnold | February 1, 2011 9:12 PM | Report abuse

Sister Soja delivers on buzzword bingo every day.

(No free space, because that's communism: don'tcha know there are commies hiding in the sock drawer, waiting to steal his smalls?)

Posted by: pseudonymousinnc | February 1, 2011 9:31 PM | Report abuse

those 20 year olds might not know much about life, but they probably know enough that they don't want to subsidize the old/unhealthy at levels above their own risk profiles.

Posted by: stantheman21 | February 1, 2011 9:39 PM | Report abuse

"This is why your vision of the future is called a libertarian dystopia."

The inability to force others into doing one's bidding is indeed dystopic from the perspective of would-be tyrants.

You'd be amazed at how charitable people could and would be if they had the $6.5 trillion the government spends annually back in their pockets.

I'd happily donate a good portion of what I would be able to keep to causes consistent with my values, and you'd be free to do the same - you might even be able to convince me to donate to causes you favor.

Posted by: justin84 | February 1, 2011 9:41 PM | Report abuse

Here are the major flaws in Ezra's argument:

#1. The claim is that "There is no such thing as 'inactivity' or non-participation in the health care market". The truth is that there is no such thing as a health care market in any comprehensive sense. There is a patchwork of poorly-regulated private commerce. You cannot be compelled to join such a "system." Period. Unconstitutional. No matter what.

#2. You repeatedly perpetrate the myth that the EMTALA entitles anyone to free care. LIES!:

- If you don't pay your hospital bill, YOUR CREDIT HISTORY WILL BE RUINED. Not exactly some loophole into a socialist utopia, now is it?

- Furthermore, uninsured people at the ER are charged higher prices than the insured, sometimes as much as 3 or 4 times the price. Thus the system is in some sense taking advantage of them and making it difficult for the uninsured to just pay a fair cost out of pocket.

- Nonetheless, a significant percentage of the care that the uninsured get at the ER IS paid by them out of pocket (see that bit about the ruined credit history.) And of course a large majority of bills incurred by the uninsured for outpatient services are paid in full by them. These people are behaving responsibly. It is quite easy to be one of these people, particularly if you are below the age of 40 or 50. A mandate to pile costs on top of these people is completely unnecessary, not to mention unconstitutional.

- Finally, one-third of "uncompensated care" costs come from the underinsured, not the uninsured. Are we going to add some new tax on the insured/underinsured to cover that?

Posted by: michaelh81 | February 1, 2011 9:47 PM | Report abuse

--*Given your relentless exertions that healthcare reformers are commie control freaks, this is a joke, right?*--

You mischaracterize my "exertions", as usual.

Some are commie control freaks. Some are just plain ignorant busy bodies. And many are useful idiots.

Would you care to tell us what it is that inclines *you* to want to constrain your fellow citizen's behavior via the force of government?

Posted by: msoja | February 2, 2011 1:28 AM | Report abuse

If you are against universal healthcare, then say so. If you believe that the constraints of the market are somehow more justified than the constraints of government, then try to prove it. But don't pretend that universal coverage will be provided by the market, or that this market failure is somehow cancelled out by government failure.

Posted by: Lee_A_Arnold | February 2, 2011 2:11 AM | Report abuse

The mandate is what made the insurance and drug companies like the health care act and allow it to pass in the first place (you don't believe Joe "Aetna" Lieberman would have voted aye without their blessing, do you?).

If the law is left standing with the mandate removed, then we the consumer get all the protections we wanted and subsidies necessary to buy insurance just like before, except the insurance companies wind up with a customer base 8 digits smaller than they were expecting.

Oh, snap!

Posted by: suehall | February 2, 2011 4:08 AM | Report abuse

@michaelh81 - You are actually incorrect. While the uninsured are charged more the great majority do not pay their bills. That is why health care bills are the number one cause of bankruptcy in this country. Also those patients who come to the ER and are truly sick eventually end up on Medicaid because they no longer can get health insurance because of preexisting conditions.I have people do this for my patients everyday to make sure they get the proper care they need once they leave the hospital. So with EMTALA in place the cost of the uninsured is being shifted to those with insurance and the government. Most people are just not as responsible as you think. So while I hate the mandate as long as EMTALA is in place it is needed to save our current health care system.

Posted by: soscane | February 2, 2011 7:27 AM | Report abuse

For information on the world Libertarian movement, please see http://www.Libertarian-International.org and e.g. an article on finance through voluntary endowments, not coercive taxes.

Posted by: RalphKSwanson | February 2, 2011 7:37 AM | Report abuse

@Michaelh81 - If you don't believe what i said just look up the uncompensated care on Google. The best estimate of that cost I saw was $43 billion dollars for 2008. That is for one year and it has gradually increased every year.

Posted by: soscane | February 2, 2011 7:50 AM | Report abuse

With control all three branches of government (according to New York's Chuckie Shumer!!!), the Democrats really bungled the chance to pass a reasonable health care bill.

Posted by: dfox71 | February 2, 2011 9:49 AM | Report abuse

You cannot trust the opinion of the chief member of the Journolist society.

Posted by: dfox71 | February 2, 2011 9:52 AM | Report abuse

Klein, like all good little liberals points to a few GOP leaders who at one time or another supported the public mandate. Their latest example of course is Mitt Romney. They fail to mention that Romney will never get the GOP nomination precisely because of his health care program. Libs also fail to mention that Romney care has almost bankrupted MA and even the Europeans are backing away from goverment provided healthcare because the costs have proven unsustainable. Maybe conservatives should start comparing the records of former Democratic Presidents who were pro-free enterprise. Kennedy for example is closer politically to John McCain than he is to Barrack Obama. JFK is probably closer to GW Bush than Barrack Obama. To find Democratic comparisons to Obama you need to go back to Woodrow Wilson. More contemporary examples are Adlai Stevenson, George McGovern and Adlai Stevenson. Luckily we had to good sense not to elect these left wing candidates.

Posted by: jkk1943 | February 2, 2011 9:53 AM | Report abuse

Lee_A_Arnold,

I don't believe that the free market will ever be able to reach universal coverage because there are free individuals who freely choose in their interests (and their own responsibilities, mind you) not to be insured. Whether the federal government has that authority to force them to is a matter of debate. (We know where Judge Vinson stands.)

However, the claim that these individuals escape their own responsibilities is dishonest. Those on government health programs also cause cost shifting to the private market. The privately uninsured pay more for the same treatments to make up for the government health programs' low payment rates, delays and administrative costs of dealing with their program (not to mention the industry's share of taxes that are used to subsidize care).

The new health care bill promises to greatly expand those costly regulations and the subscribers eligible for subsidies that will impose further cost shifting to the private market. So, in reality, it merely increases the numbers of free loaders! Except that the free loaders are no longer individuals avoiding the market but are conscripted into government health programs against their will and the bill passed onto the unsubsidized. It's even MORE cost shifting to address a small problem of cost shifting!

Posted by: cprferry | February 2, 2011 9:57 AM | Report abuse

The third sentence in the second paragraph should read "the privately insured pay more...."

Posted by: cprferry | February 2, 2011 10:02 AM | Report abuse

The issue with the health care debate is broader than the mandate or Obamacare. The question is can we fashion reform that is market based and will drive the cost curve down rather than turn over more control through extremely complicated regulatory procedures to the government. Those who believe that Obamacare will reduce the deficit hide behind a flawed CBO estimate that even the top Medicare actuary believed is based on flawed premises. The two biggest changes we could make to control costs is to allow individuals to purchase insurance across state lines and implement broad tort reform which would include loser pay provisions which would make plaintiffs pay the legal cost of the defendants if they lost the case. Since insurance can't be purchased across state lines I wonder how the Dems can argue the commerce clause?

Posted by: jkk1943 | February 2, 2011 10:03 AM | Report abuse

The number of groups and organizations seeking waivers from Obamacare--including those counted among the ranks of Obama supporters--speak loud and clear as to what people really think. All the union groups, etc. seeking waivers are going all "Quaker Oats" on Obama--"better for thee than me."

Posted by: Husker78 | February 2, 2011 10:14 AM | Report abuse

My son was hit by a car. I was standing nearby. When I found him he simply said, "My leg is broken." I didn't wait to receive advice from the gathering crowd and instead gathered him up in my arms and drove to the nearest, best emergency room available. According to Ezra Klein, the society of taxpayers paid for my son's medical care. According to my wallet, I paid for it. And that cost has been repaid many times over in the past dozen years by my not-subscribing to a health care plan. Klein can't imagine a world in which persons pay for their health care to avoid thousand-dollar monthly family premiums. My family can, because we work and pay our own bills. Klein's broken-leg bus example doesn't hold up under analysis.

Posted by: JackieBethards | February 2, 2011 10:16 AM | Report abuse

..and the Individual Mandate was NOT a tax when the Progressives were selling 'er shoving this Act (in)to the American People. In order to get it through the courts, the DOJ argued it was a tax & as such, Congress had the power. The POTUS said he was against the Individual Mangdate now he is for it (because it is the only way for this legislation to costs in the Billions rather than the Trillions).
LIES, BRIBES and now CORRUPTION (waivers for friends of the Administration).
Reform - yes; Obamacare - HELL NO.

Posted by: pab11111 | February 2, 2011 10:21 AM | Report abuse

Well, well. Ezra floats a trial balloon here just in case the individual mandate is struck down. The trial balloon says basically "no problemo". Full speed ahead with Obamacare...without the mandate.

The question then is how do you pay for Obamacare? Well, who cares...implies Ezra? Let's face it...they lowballed the cost data anyway, and anybody with a brain realizes that Obamacare's costs will be exponentially higher than the administration's rosy projections. The Left never cared about paying for this in the first place, and therefore the lack tax revenue (generated by the mandate) doesn't really concern them that much.

Best case? Just pile the cost onto the national debt and lobby for massive tax hikes later.
Worst case? The entire system collapses, at which point the Left will say "See?! I told you so!!"...and will then start lobbying for 100% govt control under a National Health Care system to fix the crisis (which they created).

Posted by: JohnR22 | February 2, 2011 10:24 AM | Report abuse

1. Yes, the mandate, at the federal level, is unconstitutional. Conservatives and libertarians all said it at the time, and Obama agreed during his campaign. You confuse the health care market with the insurance market. While related, they are separate, as people who have no insurance and pay as they go clearly demonstrate. And Judge Vinson showed an example of the fallacy of the "critical" argument by pointing out the government cannot compel people to purchase food or housing.

2. No, the mandate is not severable. The Obama administration itself has argued that it is integral and inseparable to the law. Regardless, does anyone want federal judges picking and choosing which of 2000 pages of legislation to implement?

3. Libertarians would argue that the laws requiring health care provision to all, regardless of payment, while compassionate, are also in themselves wrong. But as long as the people and courts believe we should keep those laws, there is nothing wrong with requiring taxpayers to foot the bill. But there is also nothing wrong with the taxpayers trying to recover from those who did not pay, in the way the IRS does now.

Basically, what you want is a system where people do not work with the expectation of fair compensation, where every human need or want can be met without a net cost, and where accepting charity creates no moral or legal obligations. Have fun in the Soviet, tovarich.

Posted by: INTJ | February 2, 2011 10:28 AM | Report abuse

In Canada health care is a Provincial responsibility. It is socialized but the Provinces initiated this without Federal govenment laws. Each Province defines what is 'medically necessary' and pays for it with Provincial taxes (the Feds kick in some block grants).

Why hasn't Romneycare (or a version of it) been enacted in other States? If a few Blue States can't get sort this out what are the odds it will work nationally? Why has health care become a Federal government issue?

Posted by: bburgrt | February 2, 2011 10:38 AM | Report abuse

jkk1943: Does federal law prevent the states from allowing individuals to purchase insurance across state lines? Does federal law prevent the states from enacting tort reform? I believe the answer to both of my questions is "no."

Are you suggesting that the federal government mandate that the states dismantle their insurance regulatory systems, and that they cede authority over health-related personal injury claims to the federal government?

Pretty significant invasion of states' rights. Wouldn't that also be objectionable to constitutional strict constructionists?

Posted by: mkhenry | February 2, 2011 10:40 AM | Report abuse

Ezra Klein: Let me present a piece of evidence --- The US Constitution. I know it's over 100 years old... gasp, but it is still the law of the land. It's impossible to ignore the fact that Congress is not given unlimited power over the People. The Commerce Clause is not meant for that purpose, if it were, in what since would we have a limited government? The People are the ultimate power of the U.S. If Congress runs roughshod over the People, Congress gets the boot, as they did resoundingly in November. If the Courts get it wrong, the States determine whether or not to comply. The 10th amendment exists to underline the limitations of Congress and to preserve Federalism in the face of despotism by Congress, the Courts, or the President. If the Supreme Court gets it wrong, count on 35-40 States to nullify this abomination. This is an individual liberty issue, and inalienable rights issue. What gives you the right to take the majority's money against our will and use it on purposes that we would never agree to? If that's not despotism, what is? If you really want to make Americans hate each other, make them responsible for each other's well-being, separate a man's rewards from his deeds, eliminate the ability to fail or succeed. Shared success or failure is wrong; a productive individual's family deserves better care, better results, than does an individual who is unproductive, unskilled, wrotten or a non-citizen. By equalizing the playing field, we reward the craven, and punish the good. It's immoral, illogical and overtly wrong.

Posted by: dmorris1 | February 2, 2011 10:44 AM | Report abuse

The bigger question is why is Ezra Kline called a Journalist
by Wall Po ? He is everything But !
He is nothing more than a devout radical Socialist Advocate .
He sees the bigger picture through the Eye of Needle head .
Sadly Wal Po pay's to put out Obama ands far leftist talking points in the media .
He should be paid by Socialist Party of America with Special Funding by the get out the Vote Obama 2012 Campaign committee .
Need we forget Kline started the 100 Journalist group to fend off Negative comments no matter what their merit, facts or honest Truths .
Ironically we have a Jewish Kid copying Joseph Gobbles famed Propaganda tactics .

Posted by: same15259 | February 2, 2011 10:47 AM | Report abuse

His entire argument rests on the proposition that because government decides to provide healthcare to those without insurance or other means to pay for the healthcare they may need ("your inactivity costs me money"), government is entitled to coerce others to engage in economic activity. Why not change the rules so no one is entitled to healthcare based on need alone?

Posted by: philiptilton | February 2, 2011 10:51 AM | Report abuse

Health care reform was part of Obama's platform. He fulfilled a campaign promise by passing some kind of health care reform package. If Republicans can succeed at repealing health care, then they will have fulfilled their promise. Good for them. End of story.

Posted by: nickthap | February 2, 2011 10:59 AM | Report abuse

"You were, by virtue of our laws and regulations and taxes, already an active participant."
********

So, let me get this straight Ezra. An unelected, anonymous regulator can redefine "activity" and expand Congress's Commerce power?

Without 3/4 of the states, or even so much as a bar majority vote by our elected representatives?

At that point the Constitutional is just a pretense, a prop and cover for ultra vires actions.

Really just unbelievable that you don't get laughed off the blogosphere.

Posted by: dummypants | February 2, 2011 11:03 AM | Report abuse

To make this more concrete, when an uninsured person breaks a leg and needs hospital care, that care is paid for by the rest of us. It'd be a bit odd for your economic inactivity to cost me money.
************

it is odd, it's called unemployment benefits.

Posted by: dummypants | February 2, 2011 11:05 AM | Report abuse

Ezra, you ignored Vinson's rather extensive set of options that the PPACA could have used to implement the SAME policy yet without all these Constitutional issues. They could have made it a tax and tax credit, or a narrow opt-in window, and many more.

This was sloppy legislating forced through entirely because Scott Brown's election prevented the Senate from fixing known issues.

If the Dems still held congress, they could easily patch the bill - replacing the mandate with any of these mechanisms.

Because of that, there's even MORE reason for the courts to disallow this. It's not the policy this is wrong, but the current form needlessly opens up broad Constitutional issues that could easily have been avoided. Something similar happened when the Supreme's knocked down Bush's tribual system. It wasn't the idea of the tribuals, but the shoddy system in which in was implemented.

Posted by: vimrich | February 2, 2011 11:15 AM | Report abuse

Mr. Klein's logic is incorrect when he says that if my uninsured friend Sam breaks a leg, Mr. Klein, and indeed all of us, pay for it. That is simply wrong. When uninsured Sam did indeed break his leg, he paid for it himself, working out a payment plan with the hospital. The assumption that we may not pay individually for our health problems is a fallacy, and is at the crux of the court case.

Posted by: rburton1 | February 2, 2011 11:42 AM | Report abuse

One of your assumptions is completely out of line. You assume that if a person breaks a leg and does not have insurance that they will not pay an push the cost on to everyone. That is simply not true and your arguments are nothing more then pooh-pooh.

Also, by subsudizing health insurance you are effectively doing the same thing by making people that pay for insurance pay for people who do not have insurance.


Wouldn't the individual mandate have solved a lot of problems if it required that all people make at least 40k a year. Think of all the problems we could solve with that mandate.

Posted by: krep | February 2, 2011 11:45 AM | Report abuse

Obama and Pelosi need to formally acknowledge that the bill tey attempted to pass is Constitutionally floawed...afterall if the government can solve the healthcare issue by mandating that everyone buy insurance, they could solve the homelessness problem by mandating everyone buy a home.

Once Obama and Pelosi formally acknowledge this a new legislative effort to replace the void that the striking down of their previous attempt leaves. If Obama and Pelosi are to be trusted staesman they need to act quicly and responsible respond to the fact that they failed to consider their previous effort. Getting just enough votes in the Senate and House wasn't the only problem they had to focus on...they'd need to consider whether or not it was properly framed within the constitutional authority of the federal government. They failed and now its time to grow up and provide the leadership they were elected to provide our nation.

Posted by: FastEddieO007 | February 2, 2011 11:53 AM | Report abuse

Vinson's argument is weak and will be overturned on appeal. The mandate in health care reform passed by Congress does not rise to the level of a Constitutional issue. Health care is not a choice; everyone has to have it.

Plus, the Senate will quickly end proposed "repeal" legislation coming from libertarian/conservatives in the House.

Health care reform is the law of the land and will benefit many millions of Americans.. Can it be improved? Sure.

That's not what libertarian/conservatives want, though. They want to destroy Obama's presidency. That won't happen, either. He's strong.

Posted by: dudh | February 2, 2011 11:55 AM | Report abuse

So.... if I get hit by a bus and I am unisured then my "economic inactivity" costs you and others money? Your argument assumes that I will not pay my own bills. You ahead now and make "rush to judgement" observations about how nobody would pay their bills if they simply could walk away from them. There would of course be consequences to walking away from bills such as damage to your credit rating, debt collection, etc. Still though, I find it insulting to the American public that it should be a foregone conclusion that we would not pay our own bills. In the event that an unisured individual cannot pay their bills then hospitals are more than willing to arrange payment plans. If a person wants to expose themselves to this risk then that should be their own decision. After all, insurance plans are really just shared risk arrangements. Why should a person at very low risk (exercises, eats healthy, drives the speed limit, and to Mr. Klein's point - looks both ways before crossing the street) have to help shoulder everyone else's risk? The freedom of choice remain inactive in the insurance pool should belong to the individual.

Posted by: Forrest_in_CT | February 2, 2011 11:56 AM | Report abuse

Now that this law is dead, any life to a BIPARTISAN healthcare bill like Wyden-Bennett?

http://voices.washingtonpost.com/ezra-klein/2009/08/can_there_be_a_good_compromise.html

Posted by: FastEddieO007 | February 2, 2011 11:58 AM | Report abuse

Klein is the moron who thinks the Constitution is something no one understands anymore since is was made "100 years ago" according to Klein.

Mr. Klein is a lightweight who does not know 8th grad civics or American History.

And WaPo has Klein opin on the Constitutionality of a law a federal judge says is flawed.

Posted by: cpameetingbook | February 2, 2011 11:58 AM | Report abuse

Nice bait-and-switch, framing "activity" as "the decision to purchase or not purchase health-care insurance" and then saying that everyone eventually needs health care. Health insurance is NOT the same as health care.

You do a good job of explaining why insurance is generally the smartest way of paying for health care, but that still doesn't make insurance the same as care.

And then you falsely claim that if someone doesn't have insurance, everyone else has to pay for those costs. Somebody else does pay for others' costs if they don't pay, if they allow their credit to be damaged by ignoring the bills. That *may* be true IF there is a catastrophic accident running up bills that are impossible to pay - but it is not a pure function of not having insurance.

For example, I know an uninsured person who was hospitalized for a relatively minor issue and then picked up a superbug while in the hospital. Her bill soon stretched into the tens of thousands of dollars. She has a very modest income and is paying back every penny.

Returning to the notion that economic activity can be defined as the decision to purchase or not purchase something (which may be deemed necessary, or at least the smartest way of purchasing something necessary), that is an absurdly broad definition. Not buying something, no matter how necessary or smart, does not equal activity the government can regulate.

Posted by: Crispian1 | February 2, 2011 12:01 PM | Report abuse

Its no wonder Ezra Klein wanted to discourage Americans from thinking they could understand the Constitution.
Ezra is a smart guy who knew that the mandate was un-Constitutional.

Posted by: FastEddieO007 | February 2, 2011 12:01 PM | Report abuse

Nice bait-and-switch, framing "activity" as "the decision to purchase or not purchase health-care insurance" and then saying that everyone eventually needs health care. Health insurance is NOT the same as health care.

You do a good job of explaining why insurance is generally the smartest way of paying for health care, but that still doesn't make insurance the same as care.

~~~~
Nice. I wanted to repeat that!

And by the way, the smartest insurance to buy is designed such that you pay a relatively small periodic payment in order to pay for a rare expensive event that occurs at some unpredictable time.

What many people call a healthcare insurance plan is really just a healthcare installment plan. And the healthcare installment plan happens to be a BAD way to pay for healthcare....its actually a fairly bad way to pay for anything.

Posted by: FastEddieO007 | February 2, 2011 12:09 PM | Report abuse

The argument conservatives are making right now is that the individual mandate regulates "economic inactivity." That's not a description anyone had heard of ....and it's not what the policy's creator had in mind....But that doesn't make it untrue.


Kudos to you Ezra for such a fair-minded statement.

In this age of hyper-partisanship there is not enough such fair-mindedness...and not enough acknowledgement of its importance to a civil debate on the issues we need to deal with as a nation!

Posted by: FastEddieO007 | February 2, 2011 12:12 PM | Report abuse

This is a dishonest argument. If the individual mandate were really about uncompensated emergency care, it would only require insurance for, uh, uncompensated emergency care. That insurance would be much cheaper, and would not subsidize the ban on exclusion for pre-existing conditions. It's transparently (and, often, admittedly) about exploiting the younger and healthier to benefit the older and sicker.

There's also an old principle in the law that no man can make another man his debtor: I can't force you into a contract by mowing your lawn without prior agreement and then demanding payment. The same moral principle applies here: if the government wants to mandate free care, that unrequested, unwanted, and (for most people) unused benefit can't morally justify the imposition of a cost. To hold otherwise is the morality of the squeegee man, or the protection racket.

Posted by: sgh22 | February 2, 2011 12:14 PM | Report abuse

Now you think the supremes will strike down the health Care law and you try to salvage it.
The HC law is good but the way the Dem did it made people sick. I always support Dems but last election it is the FIRST TIME EVER I VOTED for GOP. It is because the HC law. The way that the Dems showed contempt for the people caused it.

Posted by: henryvu | February 2, 2011 12:16 PM | Report abuse

We Americans must not allow the hyper-partisanship of flawed leaders like Nancy Pelosi cause us to forget what bipartisanship looks like....we as a nation can build a consensus and solve the crisis in the spiralling cost of healthcare in a way that satisfies the concerns of most Americans.....

http://voices.washingtonpost.com/ezra-klein/2009/08/can_there_be_a_good_compromise.html

We need to get passed this flawed attempt to ram a partisan scheme down our throats!

Posted by: FastEddieO007 | February 2, 2011 12:17 PM | Report abuse

Mr Klien, This is almost an unbiased article. I commend you. The mandate, I hope, will be struck down by the Supreme Court, and if so, I will be satisfied. That also doesn't mean that the medical industry won't have to be reformed in some way. I hope the next version of any health care reform law will really attempt to deal with cost, not only coverage.

Posted by: garypaulcox | February 2, 2011 12:20 PM | Report abuse

Mr Klein, This is almost an unbiased article. I commend you. The mandate, I hope, will be struck down by the Supreme Court, and if so, I will be satisfied. That also doesn't mean that the medical industry won't have to be reformed in some way. I hope the next version of any health care reform law will really attempt to deal with cost, not only coverage.

Posted by: garypaulcox | February 2, 2011 12:21 PM | Report abuse

If Obama wants to be a transcendent President, he should seize the striking down of this legislation and while he has some leverage make a deal with Republicans in the House to simultaneously formally repeal this flawed law and replacing it with a more bipartisan effort built on the Wyden-Bennett framework.

Marty Feldstein wrote a brilliant proposal that simultaneously provides tax-payer subsidized healthcare to all people in a way that revitalizes the market forces that make healthcare costs definitively sustainable.

Posted by: FastEddieO007 | February 2, 2011 12:25 PM | Report abuse

A few major flaws in this logic. HOW someone participates in the healthcare system and how much remains their choice. You may choose to never see a doctor, take your chances, etc. You may choose to be insured to the hilt, or somewhere in between. Well you can't now actually because Obamacare mandates that as a male I must still carry coverage for OBGYN visits, etc....You can no longer choose how much or how little coverage you want. The nanny state tells you what you must have.

The other HUGE flaw is that if they don't have insurance the rest of us pay. That is a direct cause of OTHER legislation that has been passed namely Medicaid, Medicare, and laws requiring hospitals to treat patients regardless of their ability to pay. Because of OTHER legislation, that is true. And hospitals mostly decide they will get their money easier through passing those costs to the rest us instead of suing and jailing the deadbeats. But you can't say that it is ok to mandate insurance because we will pay for those without insurance anyway when the Congress is the REASON for that statement to begin with. But it is the usual lefty contortionist logic about matters such as these.

Posted by: steverb | February 2, 2011 12:26 PM | Report abuse

While I agree with most of the comments re: the mandate is unconstitutional (and I taught Con Law in Calif. many years ago) the real question is why do so many of you give a crap what a 26 year old with no accomplishments to speak of other than a pedantic writing style has to say? We all learn to write by second grade, but most of us go on to more productive things.

Posted by: lawgrad88 | February 2, 2011 12:35 PM | Report abuse

The other HUGE flaw is that if they don't have insurance the rest of us pay. That is a direct cause of OTHER legislation that has been passed namely Medicaid

GREAT POINT!

There is no formal linkage to the notion that if someone fails to get healthcare insurance, Americans will eventually have to pay for it. This isn't in the Constitution and no judge should even consider that assertion as a defense for the mandate. If the legislature wishes to pass laws that force people to pay for other citizens healthcare when they do not have the money or coverage to pay for it themselves, so be it...but they can not use that as a premise for grabbing MORE power.

If the legislature does not deem it fair to have people who buy their own insurance to pay for people who don't they have to power to change that....but they still do not have the power to simply force everyone to go buy it.

Posted by: FastEddieO007 | February 2, 2011 12:39 PM | Report abuse

Klein doesn't want to hear it, but his argument is filled with flaws.

To touch on just one, I note his comment that "But your decision to remain without insurance does cost me money, because you're an active consumer of health-care risk and an active participant." That might be true in some cases but not in all. What about people who pay cash for all services rendered or someone who never sees a doctor and falls over dead. How do they cost Klein?

I don't think Klein has the intellectual ability to read and address all the points made by Vinson. Vinson says that almost everything we do has some relationship to commerce. If enough people don't buy coffee, then the coffee market is destabilized as Vinson effectively says. So Klein has yet to get over the hurtle of appearing to allow Congress to force us to buy any imaginable product or service. Health care is simple not as "unique" as he's love to believe.

Posted by: BillCarson2 | February 2, 2011 12:39 PM | Report abuse

Lets just let SCOTUS settle this one. Then be done with it.

Remember, when the 9th struck down California's marriage amendment, the state said it would not appeal it...since the court said it was unconstitutional.

Aparently, "Unconstitutional" all depends on the issue and who is fighting, not what a court says.

Until SCOTUS.

Posted by: jiji1 | February 2, 2011 12:56 PM | Report abuse

If an individual without insurance or sufficient funds is hit by a bus and requires substantial medical care, of course, go ahead and provide treatment. The next phase is the compensation, settled by a court if necessary, which will be negotiated payment plans, wage garnishment, attachment of assets - what have you - to settle the debt. A humane society is a moral society. One part of our morals sometimes forgotten is that individuals need to take responsibility for their own actions. I'm only interested in helping people who really need help. I'm not interested in helping some jerk who would rather have an i-phone and a new car and eat out five times a week instead of a health insurance policy.

Posted by: kreminitly | February 2, 2011 1:03 PM | Report abuse

Mr. Klein simply restates the arugment in favor of the individual mandate that were made in the amicus briefs in favor of the defandant's position. He does not take on the logic of the judge's ruling. Judge Vinson convincingly shot down Mr. Klein's arguments with a logic train that goes something like this:

1) There are many markets that individuals must participate in such as housing, food, and transportation. Defining "inactivity" as active decision making leaves open the possibility of federal government mandates to buy products made by private companies in any market. The Commerce Clause becomes meaningless. (Even the administration's own supporters call the mandate "unprecedented".)

2) An individual in any point in time costs the health care system nothing. To project future costs that pile assumption upon assumption to an individual's decision in the present and then to aggregate those future costs in order to compel individual ativity is unconstitutional and not supported by precedent.

3) The Necessary and Proper Clause can not be used to make an unconstituional law enforceable.

It really doesn't matter what ilk of politician may have supported indivudla mandates in the past. The law was ruled unconsitutional and it's a shame that Mr. Klein seems unwilling to argue those points.

Posted by: rsimonds1 | February 2, 2011 1:08 PM | Report abuse

"when an uninsured person breaks a leg and needs hospital care, that care is paid for by the rest of us"

Firstly, this is not true -- plenty of people can afford to -- and do -- pay out of pocket for their own medical care. In fact, if a person forgoes the cost of health insurance, they will have loads of money which they could bank and use to pay for a cast. In fact, the system would work a whole lot better if a much larger portion of healthcare spending was funded by patients out of their own pockets, and insurance only came into play when people got seriously ill, rather than picking up the tab for every single service received. Pricing would be more rational and service delivered more sensibly. I would love it -- LOVE IT -- if my employer would offer a simple health insurance plan that had a low LOW premium, and a high deductible, letting me pay out of pocket for just about everything, so I never had to call the darn insurance company or look on their website for anything.

Second, for those who turn to "us," by which you mean the government and private healthcare providers, to pay for their care, "they" only get that benefit because "we" choose to give it to them. We require healthcare providers to treat those who are uninsured.

Posted by: jdelvecch | February 2, 2011 1:14 PM | Report abuse

How did Obama ever think that his program would pass constitutional muster? How could he imagine that the Interstate Commerce clause could cover something that wasn't interstate (health insurance cannot be sold over state lines) and wasn't commerce (failure to buy insurance is not commerce) would stand up in court?

Posted by: backsds | February 2, 2011 1:18 PM | Report abuse

@soscane:

As for the percentage of uninsured who pay their bills, that's difficult to find, I've seen estimates that it is pretty low, 25%. However, that is after being charged more than the insured for no good reason - if the charges were fairer, more uninsured would pay out of pocket. Certainly a majority of uninsured who seek care at regular doctors, not ERs, do pay their bill. Look at all the uninsured people in the comments who do pay their bills including at the ER. What we do know is this - 100% of uninsured risk ruining their credit if they don't pay their bills. About 25% do pay their ER bills, presumably the ones who can afford to pay and don't want to be irresponsible and ruin their credit. Even if the number who don't pay the ER is as high as 75%, these are presumably the people who just don't have the money to afford it and have no choice but to risk their credit history. It's hardly like these people are getting a free ride. You really support a mandate to punish these people?

I have seen lower estimates on uncompensated care, also in 2008, from the NYT, they said it's $36B:

http://www.nytimes.com/2010/02/09/health/policy/09hospital.html?hpw

However, with the Medicaid expansion, that number should go down by at least half, let's say it's a $20B problem.

Now, due to the people with insurance who are underinsured, "a third of uncompensated care is actually doled out to the insured":

http://reason.com/blog/2010/02/10/is-uncompensated-care-a-proble

What say you to that?

So it looks like the uninsured getting uncompensated care is actually only going to be about a $14B problem. Not nothing, but a tick on the ass of the overall health care problem. Do you really believe a sweeping unconstitutional individal mandate effectively addresses that $14B problem?

Posted by: michaelh81 | February 2, 2011 2:02 PM | Report abuse


"To make this more concrete, when an uninsured person breaks a leg and needs hospital care, that care is paid for by the rest of us."

That assertion is at best true only some of the time. Very often the uninsured pay out of pocket for services rendered. Just like most of us without dental insurance do.

Posted by: fiskog | February 2, 2011 2:03 PM | Report abuse

"Because health services are so expensive".

They're expensive for a number of reasons, two of them being.

The lacke of torte reform, and the goverment should carry the mal-practice insurance.

Of course a doctor has to charge a lot when he has to pay half a million dollars a year mal-practice insurance.

"The legislation will work much better with an individual mandate. But many people will be covered, and many goals achieved, in the absence of the mandate".

How will it funded?

The bottom line is that Judge Roger Vinson summed it up wonderfully, "You can't make somebody buy something just because they're American and alive".

As regards the Supreme Court, it has already ruled on at least two similar cases and found them to be unconstitutional.

http://tiny.cc/not-constitutional

The Supreme Court has frequently interpreted Congress’s commerce power quite broadly, but this type of mandate could not undergo review without censure, regardless of the pressure exerted.

"The federal government simply does not have the power to regulate Americans in this way, and in two key cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate non-economic activities simply because, through a chain of causal effects, they might have an economic impact".

August 24th, 2009

Posted by: redmike | February 2, 2011 2:09 PM | Report abuse

Another column by JournoList Ezra talking about legal issues he knows NOTHING about.

stick to water carrying for BO, it doesn't take any smarts for that, Ezra.

Posted by: morphy | February 2, 2011 2:20 PM | Report abuse

cprferry: "I don't believe that the free market will ever be able to reach universal coverage because there are free individuals who freely choose in their interests (and their own responsibilities, mind you) not to be insured."

What about the number of people who want it, but increasingly can't afford it?

Posted by: Lee_A_Arnold | February 2, 2011 2:23 PM | Report abuse

Ezra... why don't you just come out of your Marxist closet? Your Predecessor & mentor stated much more concisely what you took paragraphs to hide...

"From each according to his ability, to each according to his need."

Ezra... you are anti-American... and too chicken to own up to it.

Posted by: wilsan | February 2, 2011 2:28 PM | Report abuse

Sorry, Ezra. "The GOP once proposed it" isn't an argument that will carry weight with any self-respecting court, even one composed 100% of Democrats. Also, it would be very difficult for the Administration to argue in front of an appellate court or SCOTUS that the individual mandate is severable given that one of their key arguments was that it was essential. A court will not look too kindly on that.

I'm guessing that the only reason the Administration is refusing to request a speedy review by SCOTUS is that Obama hopes his presidency outlasts Anthony Kennedy's tenure on the Court so that he can get another "safe" appointment.

Posted by: KPOM1 | February 2, 2011 2:36 PM | Report abuse

It seems in Mr. Klein's world people just walk away from their bills. In my world these people are called thieves.

Posted by: Ohmylumbago | February 2, 2011 3:33 PM | Report abuse

OK let's make the assumption that Ezra is correct and that there is no such thing as inactivity in health care and therefore all health care decisions can be considered "commerce". So let's say someone is uninsured and has to go the local ER for a broken leg. What part of this "commerce" is interstate?

Posted by: axuary | February 2, 2011 3:44 PM | Report abuse

axuary,

The interstate requirement is no hurdle. It is well-established by legal precedent that intrastate activities fall under the commerce clause when if they are all added together have a substantial impact on interstate commerce. So all the broken legs totalled together could have such an effect on interstate commerce because the financing of medical care is so nationalized under the insurance scheme. The "economic" requirement has also been very broadly construed. Thus the requirement that some "activity" take place is the last hope for limiting federal action under the Commerce Clause.

Posted by: Crispian1 | February 2, 2011 4:49 PM | Report abuse

When are the WP going to hire adults?
It's TOO cinfusing for you idiot!
It's over 3 days old!

Posted by: jpalm32 | February 2, 2011 5:35 PM | Report abuse

The only place that there might be a legitimate role for government is to subsidize those with pre-existing conditions and those who cannot afford insurance (not just permit ER visits). Beyond that the government should be enacting legislation that will reduce the cost of health care, including tort reform and interstate insurance sales. These simple steps result in all being covered and at a lower cost than Obamacare.

The argument that Obamacare is "good" for all whether or not the actions are constitutional is total nonsense that no U.S. citizen, much less an elected official, should be "shouting from the mountain top" or from the Op-ed pages of a major newspaper.

Ezra, get on the right side of the issue and stop bloviating about how inactivity is an activity which insults our intelligence.

Posted by: colion | February 2, 2011 5:36 PM | Report abuse

Don't you just love the way Ezra cite the 'brief' by 38 health care economists and academics as dicta for Constitutional legitimacy of the mandate.

That's the critical thinking ability of his generation in this country. God help us.

Posted by: KipDellinger | February 2, 2011 8:15 PM | Report abuse

Don't you just love the way Ezra cites the 'brief' by 38 health care economists and academics as dicta for Constitutional legitimacy of the mandate.

That's the critical thinking ability of his generation in this country. God help us.

Posted by: KipDellinger | February 2, 2011 8:16 PM | Report abuse

Don't you just love the way Ezra cites the 'brief' by 38 health care economists and academics as dicta for Constitutional legitimacy of the mandate.

That's the critical thinking ability of his generation in this country. God help us.

Posted by: KipDellinger | February 2, 2011 8:16 PM | Report abuse

My sincere appreciation to the Senate Democrats for assuring Republicans a 60+ vote majority come 2012.
The ads are being written, the strong candidates being recruited, the GOP is getting financial support, and Americans like me are madder than h_ll.
1928 not good enough for you, wait until 2012 and see what a REAL minority Party looks like.

Posted by: backsds | February 2, 2011 9:33 PM | Report abuse

It amazes me that Ezra again is posting all this crap (as usual carrying water for the Obama administration along with his other Journolist friends) without actually addressing the decision. It is true that at some point all people will have to get health care just at some point all people would require transport or eat food. Does that mean that the government can force us to buy a certain type of food or certain kind of car because of the commerce clause? I agree that the health care costs are out of control. Also there are some abuses by the insurance companies that need to be remedied but the way to solve this is not to throw the Constitution and our liberties out the window. Rather we need a more honest debate and a more honest approach.

The health care bill is full of gimmicks. As a rule, when people resort to gimmicks, it is because their arguments cannot stand on their own merits and that they lack courage of their convictions. The honest thing to do is for the government to create a new setup called the national catastrophic health insurance which is deducted out of everybody's paycheck a la medicare. This will go into a national pool that covers all the things such as preexisting conditions and the catastrophic coverage for the uninsured (a healthy young guy getting into a car accident for example). The price for this could be steep and I have no idea how much needs to be taxed but at least the numbers come into play and everybody can understand what the expected cost of the plan is going to be. Then we can decide whether or not this is a good idea. It is clean; it is Constitutional, and it is honest. I suspect that most Democrats would get behind this plan (if they had the courage for it) and the Republicans will be in a put up or shut up position.

Also we need tort reform. If the Democrats were serious about controlling health care costs, they would have at least accepted the idea that lawsuits play a big part in the cost of health care in this country. When they point to other industrial nations having a national health care system, they conveniently forget that in most of these countries malpractice lawsuits are non-existent, lest they offend the trial lawyers. Let's be honest about the whole thing. I don't think the people are for or against big government; they just want a government that levels with them and does what it says.

Posted by: sshamba | February 3, 2011 3:30 AM | Report abuse


My dad told me about "Wise Health Insurance" or something which helped him to find a lower priced health insurance (with ALMOST similar benefits) he is recommending this to me. Any suggestion? What do you think of them?

Posted by: dichack | February 4, 2011 5:14 AM | Report abuse

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