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Posted at 3:00 PM ET, 02/ 3/2011

Give me liberty or give me health care

By Charles Lane

Judge Roger Vinson's ruling striking down the health-care law's individual mandate and, with it, the rest of the statute, may or may not stand up in higher courts. But it's more convincing than some arguments I've read on the other side.

My colleague Ezra Klein, for example, argues that "whatever the legal argument about the individual mandate is about, it's not, as some of its detractors would have it, a question of liberty." The individual mandate involves less intrusion in private markets and more personal choice than alternatives such as a single-payer system, Ezra notes -- borrowing the point from no less a conservative eminence than Charles Fried of Harvard Law School. Indeed, quite a few liberty-loving Republicans have supported various individual mandates in the past. This proves, according to Ezra, that conservative and Republican opposition to the current iteration of the individual mandate is just legal pettifoggery and political opportunism.

Uh, no.

As a policy matter, there is a case to be made that an individual mandate to buy certain health insurance from certain companies, enforceable by a monetary penalty, involves less direct federal intervention in the private economy than conceivable alternatives. But in constitutional law, this is immaterial. Nor does it matter that some Republicans once approved of the idea -- or that President Obama once fervently opposed it. The only consideration is whether Congress has enacted the mandate pursuant to one of its enumerated constitutional powers.

Conservatives, therefore, are not hypocritical to suggest that a single-payer system would be less libertarian but more constitutional than the health-care law's individual mandate. Single-payer -- and any reduction in liberty it might entail -- would be clearly authorized under Congress's power to raise revenue and spend it on the general welfare (Article 1, Sec. 8). Ditto for a state individual mandate like the one Massachusetts enacted under its sovereign police power, which raises no question of congressional authority at all (see the much-maligned Tenth Amendment).

The point Ezra misses -- by a country mile -- is that the threat to liberty, if any, comes not so much from the individual mandate itself, but from the other things Congress might do if it gets away with claiming authority for this measure under the commerce clause.

Fairly stated, this is the conservative constitutional argument: Health care for all is a good cause. But if, in the name of that noble goal, you construe Congress's power to regulate interstate commerce so broadly as to encompass individual choices that have never previously been thought of as commercial, much less interstate, there would be nothing left of the commerce clause's restraints on Congress's power. And then, the argument goes, Congress would be free to impose far more intrusive mandates. Judge Vinson suggested that Congress "could require that people buy and consume broccoli at regular intervals," and that is hardly the most absurd or mischievous imaginable consequence.

There may be a convincing rebuttal, but I haven't heard it yet. (Orin Kerr attempts one, and Jonathan Adler counters it.) Rather, it looks like the law's drafters never took such concerns very seriously and are paying a price now for their legal overconfidence. It's not terribly persuasive to suggest, as the Obama administration has done, that the health-care market is "unique" -- that's asking the courts for a ticket good on one train only.

Ezra says this is all about "semantics." Congress has the power to levy taxes; and the "penalty" attached the mandate really is a tax, but Congress couldn't use the word "tax," because it's politically "toxic." "I don't believe our forefathers risked their lives to make sure the word 'penalty' was eschewed in favor of the word 'tax,'" he writes. Wrong again: Actually, one purpose of the Constitution is to prevent government from engaging in politically expedient deception. The modern term, I believe, is "transparency."

This passage from New York v. United States, from which Judge Vinson also aptly quoted, puts it rather well:

Some truths are so basic that, like the air around us, they are easily overlooked. Much of the Constitution is concerned with setting forth the form of our government, and the courts have traditionally invalidated measures deviating from that form. The result may appear "formalistic" in a given case to partisans of the measure at issue, because such measures are typically the product of the era's perceived necessity. But the Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.

Justice Sandra Day O'Connor -- not exactly a right-wing nut -- wrote those words, in 1992. What she was basically saying is that, under our Constitution, the ends do not justify the means.

By Charles Lane  | February 3, 2011; 3:00 PM ET
Categories:  Lane  | Tags:  Charles Lane  
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Next: Hey, it's my Constitution, too!

Comments

I keep hearing that the health care law punishes people for economic inactivity. It is not entirely clear to me that this is the case. Health insurance is not the product people are in fact purchasing -- health care is. Health insurance is merely a means to pay for the actual product to be consumed at some point in the future. And since virtually nobody can afford to pay out-of-pocket for any kind of serious medical treatment these days, having health insurance is the only way to participate legitimately in the health care market. You can opt out of buying insurance, but opting out of health care is much trickier. I may think I'm never going to get sick and plan my life accordingly, but when faced with the actuality of a serious illness, there is a good chance that I'll show up at the hospital anyway, and the bills will be paid by others. In the end I haven't opted out at all, just passed the cost along to those who were more responsible. I cannot think of another product of which this is true. The health care/insurance industry is indeed unique, or at least awfully close.

Posted by: len13 | February 3, 2011 4:17 PM | Report abuse

I think this sort of argument would have made sense during the time the law was being considered.

During the time the votes were being considered, the Republicans did nothing but obstruct and delay and were not about anything but defeating ANYTHING that was proposed by Democrats.

The risk in taking that approach is that you might get something you really don't like and you pretty much gave up your right to make meaningful changes because you chose to obstruct and delay.

You can't play it both ways. You are either about putting together something that you are OK with or you are not.

So far, I haven't seen anything that could be even remotely considered a fully featured proposal to resolve the issues that Republicans have problems with. All I've seen is attempts to repeal the law and even then, some jerks thought it would be good to add 'job killing' to the title, which is silly and childish.

Until that occurs, your political rhetoric is just another voice in a sea of political rhetoric.

Posted by: RichRable | February 3, 2011 4:47 PM | Report abuse

Undoubtedly the health care system needs to be reformed, however, the bill has made things worse before it was ever even finished.
I do not have healthcare at my job. My husband does, but it's $800 a month. He has been out of work, like so many, for 9 months and finally has a job.
We can pay $800 a month or we can pay our bills.
Under the new Health Care bill, we would be forced to pay the $800 and would have to default on student loans to come up with the extra cash. That is not constitutional.
Our employers have us trapped when it comes to health insurance; we have to take what they offer. Many employers are no longer offering insurance or are offering it at very high rates, or are punishing you for having to cover a spouse (ie the spouse should be covered by their own employer's health insurance).
Our government wants to make this situation the norm. Our government is much more interested in our companies than our people.
Forget party affiliations; if you actually pay attention,as Lane mentions, the parties swap back and forth their agendas all the time. If the Reps are for the Dems are against and vice versa. This is playground politics.

Posted by: hebe1 | February 3, 2011 4:47 PM | Report abuse

Mr. Lane makes some good points, but suggesting that legislation embodying a single payer system would have received a warmer reception from conservatives is a bit ingenuous. They might concede its constitutionality while working hard to defeat it. The fact remains that without some reform millions of American citizens have no way to pay for health care, and the providers of that care will continue to foot the bill, which in turn increases costs for everyone. I'm not sure that kind of "freedom" has a lot of value.

Posted by: ikeaboy | February 3, 2011 4:49 PM | Report abuse

len13:

Yes, your characterization of theh problem is absolutey correct. The insurance argument conservatives are making is a canard, the fact is no-one legitimately opts out of health care. If you don't have insurance and can't pay out-of-pocket the costs are absorbed by people who have insurance. Doctors cannot refuse to treat ill people no matter their ability to pay. It's even worse in that the poor can't get preventative care and only end up getting ER treatment when they are really sick, which is really expensive and poor use of resources, since that money is better spent helping people not be sick in the first place.

Also, this argument is the one used by one of the judges that upheld the law as constitutional. The current count is a tie 2-2.

But it's ok, if the individual mandate is deemed unconstitutional by judicial fiat, single payer is a better solution anyway. Just get rid of the middleman insurance co.'s. Medicare for everyone.

Posted by: trey | February 3, 2011 4:53 PM | Report abuse

so Mr. Lane is saying that social security, medicare, etc. is definitely constitutional.

If this version is unconstitutional (by Supreme Court rule) then I guess single payer is the option that we will end up with.

It seems like that will be the only way that would be constitutional way to have universal coverage in an economical way (other than to just say that those can't afford it don't get health care).

Posted by: Pensfans | February 3, 2011 5:01 PM | Report abuse

The Democrats silenced all dissenting voices and have painted themselves into a corner with this unconstitutional bill. They have no one to blame but each other.

Posted by: JustJoe3 | February 3, 2011 5:15 PM | Report abuse

Single-payer is politically impossible, but mandated private insurance is unconstitutional. So, America is stuck with barbarism in the way it manages health care.

Emigrate now while you still can!!

Posted by: AnonymousBE1 | February 3, 2011 5:20 PM | Report abuse

First, regarding the mandate, a little research:

In 1798 (yes, seventeen ninety eight), CONGRESS enacted a LAW creating the United States Marine Hospital service.

It REQUIRED ship captains to deduct twenty cents from each sailors pay, to be used for the care of SICK and DISABLED seamen in EXISTING HOSPITALS OR OTHER INSTITUTIONS.

Considering the Founding Fathers were very much alive and well at that time, I think we can conclude that if they knew what was happening now, they would be twirling in their graves.

Not to mention that in 1801 THOMAS JEFFERSON extended this to include New Orleans, AND the congress of the time APPROPRIATED more funds to supplement the twenty cents collected from each seaman.

By implication then, for ACA, if you are a citizen of the United States, cough it up. Congress has ALREADY enacted a similar ACA, waaaayyy back in 1798, and expanded it in 1801.

Second: Hebe1: The ACA is not yet in full effect. When it is, there will be a sliding scale income measure, so that you will be able to both afford health insurance, and pay your bills.

The insurance companies have been raising their rates since I have been working. That's about 25 years. In the beginning, employers paid all the premium. Since about 1993, employers started paying only part of the premium, and deducting the rest from my paycheck.

I have no reason to believe that this trend wouldn't continue. I have every reason to believe that it would.

How about you?

Posted by: taroya | February 3, 2011 5:22 PM | Report abuse

Gonzales v. Raich (previously Ashcroft v. Raich), 545 U.S. 1 (2005) puts this argument to rest.

Posted by: mcstowy | February 3, 2011 5:40 PM | Report abuse

Bush v. Gore. Ends justify means, courtesy of SCOTUS.

Posted by: garbage1 | February 3, 2011 5:41 PM | Report abuse

I read a good suggestion that someone made on another board the other day: The government should penalize people who do not buy health insurance by denying them access to Medicare later in life.

Posted by: samiles2011 | February 3, 2011 5:49 PM | Report abuse

Good points. Conservatives are right that a single payer is more Constitutional. Take that further.

The health insurance mandate was deliberately positioned way down the road to distract the Republicans while the good parts anchor into the American way of life.

The next step is to give up the'mandate' and slide in the single payer system as the substitute.

But only after the opposition has made themselves look cynical and greedy.

Why is health care different than clean water and food safety?

Is the average citizen better off with a single payer funded through taxes already paid, or by inserting an independent contractor (insurer) whose focus is profit, not healthcare.

The 'individual mandate' censure runs right up against anti-choice agendas.

If you can't mandate an individual pay for someone else's insurance, then women cannot be forced to pay for pre-natal care for an unwanted pregnancy.

The responsible party must be the fetus. (Personhood from conception, remember.)

Under these rules, the woman has the right to cancel or not have pre-maternity insurance.

The government can't subsidize the option not to pay for pre-natal insurance or the option to terminate.


So by negating 'mandates' for coverage, health care opponents reinforce the constitutionality of Roe v. Wade, and negate State's efforts to squelch abortion services.

Posted by: Robynmarigny | February 3, 2011 5:58 PM | Report abuse

Court hears challenge to Voting Rights Act

By Spencer S. Hsu
Washington Post Staff Writer
Thursday, February 3, 2011

Conservative legal activists are set to renew their campaign to overturn the nation's landmark Voting Rights Act, arguing before a federal district judge in Washington on Wednesday that states and local jurisdictions should no longer be forced to justify voting changes to the Justice Department or a federal court.

http://www.washingtonpost.com/wp-dyn/content/article/2011/02/02/AR2011020206303.html

No comments on this story, eh Hiatt? You are a sold out piece of crap.

Posted by: aartmann112004 | February 3, 2011 6:11 PM | Report abuse

What I'd like to know is who exactly do all these people who don't want to buy health insurance expect to pay the tab when they get sick?

Posted by: MNUSA | February 3, 2011 6:16 PM | Report abuse

What I'd like to know is who exactly do all these people who don't want to buy health insurance expect to pay the tab when they get sick?

Posted by: MNUSA | February 3, 2011 6:16 PM | Report abuse

I'm glad there is still one newspaper in America that publishes both sides of important issues. Thank you Washington Post.

Posted by: garypaulcox | February 3, 2011 6:19 PM | Report abuse

What remains true is that there is no viable GOP plan to do ANYTHING significant about changing the current health care situation (tort reform? . . . possible, maybe even good--Obama agrees, but not a significant game changer). So if SCOTUS strikes down or otherwise eviscerates Obamacare, the GOPs/TPs will then devote all their energies toward resisting a single-payer program. So either way we have no significant change.

And what will they propose in Obamacare's place? Nothing. After all, Obamacare is very similar to GOP-anti-Hillarycare c. 1994 and Romneycare in Massachusetts, but such ideas won't fly NOW with the GOP/TP set. Furthermore, so many arch-conservatives have explicitly stated that the government should have nothing to do with health care anyway (either conveniently forgetting the VA and Medicare (etc.) or actually favoring repeal of those!). Although many moderate Republicans don't think this, there are many arch-conservatives/diehard libertarians whose position really IS (although they won't admit it): "Dying? Sorry, bub. Not my problem. And don't think of impinging upon my liberties to do anything about it. You probably brought it on yourself, anyway . . ." For these folks, there is ALWAYS a reason not address health care.

So let the constitutional battles rage. Let's watch Charles Lane and Ezra Klein duke it out with their pens (well, electrons) . . . . And lots of folks on both sides will be biting their nails until SCOTUS rules. And after it does, the losers will be gnashing their teeth. And if there is either repeal-with-no-replacement (the current GOP plan) or Obamacare-overturn-by-SCOTUS (the current GOP fervent prayer), we'll still be have our deteriorating--unless you own a health insurance company--status quo. Greeeeaaaat.

Cheered up, are we?

Posted by: post_reader_in_wv | February 3, 2011 6:27 PM | Report abuse

Though I support health care reform, the individual mandate has worried me.

But, it seems the sticking point is forcing a person to purchase a product in the private market.

Let's try this.

The government has determined that it is in the general interest that everyone have access to healthcare. If you wish to obtain your healthcare through your employer or purchase it yourself, that fulfill the general interest.

If you cannot or do not obtain healthcare through private arrangements, the government will provide healthcare and charge you a fee for it.

Basically it's a public program with an opt-out mechanism.

If the government wishes to subcontract public healthcare to private providers (e.g., Medicaid/Medicare) or to private networks assembled by an insurance company, the government can do so.

So we'd have a reproduction of the provisions of the Congressionally mandated healthcare for the merchant marine passed in 1798, with opt-out added.

http://blogs.forbes.com/rickungar/2011/01/17/congress-passes-socialized-medicine-and-mandates-health-insurance-in-1798/

Posted by: j3hess | February 3, 2011 6:34 PM | Report abuse

hebe1: depending on your financial circumstances, you would be eligible for a subsidy for some or all of the cost of the premium

len13: exactly, health care is the product, not insurance, and you know you will buy health care, and deciding not to buy insurance for the health care you know you will need is activity, as far as I am concerned. you can't pretend you didn't think about it, and you can't not decide without consciously deciding. you are deliberately chosing to stiff someone else with your health care costs. that is about as unique as it gets in terms of not buying a product in the private market. it's either that or knowingly buy health care and stick someone else with the bill.

Posted by: JoeT1 | February 3, 2011 6:36 PM | Report abuse

Uh, no! It's not a question of liberty OR health care. The mandate was just a sell-out to the insurance lobby and the anti-"socialist" right wing. Please, raise my taxes and give me single-payer, government-run health insurance. I'm dying here!

Posted by: TheDiz | February 3, 2011 6:38 PM | Report abuse

Liberals really have nothing of value to add to this conversation.


The law is clearly unconstitutional, despite the wishes and dreams from the left that it is not.


Their entire ideological template is unconstitutional, so they have been forced to invent an entire way of interpreting a Conservative document, to make it "live and breath" liberal oxygen, giving life to their constitutionally dysfunctional ideas.

Posted by: FormerDemocrat | February 3, 2011 6:41 PM | Report abuse

Anyone who reads the US Constitution as a conservative document has a very poor understanding of liberal philosophy, or even the meaning of the word.

Liberal: of or befitting a man of free birth; marked by generosity; openhanded; given or provided in a generous and openhanded way; not literal or strict; not bound by authoritarianism, orthodoxy, or traditional forms.

The Constitution is NOTHING if not a liberal document!

Posted by: TheDiz | February 3, 2011 6:50 PM | Report abuse

Continued ignorance of the fact that almost all very important legislation, such as healthcare reform, is passed in need of even major modification and passage in almost any form is of great significance. Proof that needs of Parties are on their minds more than the needs of the nation? Anyone who'll deny that we need to address healthcare? Whose needs appear to be getting the most attention?

Posted by: reenie10 | February 3, 2011 7:00 PM | Report abuse

The liberal/freeloader/Dumbocrat contingent just can't stand that the Constitution of the United States puts limits on what Congress can impose on the people. Obamacare is UNCONSTITUTIONAL on its face and a federal judge has voided the entire obamanation.

Remember libs; Gun ownership is a RIGHT. Healthcare is not. Healthcare is a commodity. If you want healthcare, purchase it. If you don't want it, the government has no right (and no power under the Constitution) to make you buy it.

Posted by: oldno7 | February 3, 2011 7:06 PM | Report abuse

Oh, I see. The problem is not this law. It does not detract from Constitutional liberties. The problem is what it *might* lead to. As with all slippery slope arguments, this one assumes that we have no way to stop the slide and will inevitably end up on the bottom.

I'm afraid that 228 years of American history refutes that, Mr. Lane. If your best shot is to raise the bugaboo of something that might (or might not) happen later, you are in a weak position indeed.

Posted by: turningfool | February 3, 2011 7:08 PM | Report abuse

Get rid of the health insurance industry scam altogether.

We'd cover every American for up to 30% less than it costs now and never again have to deal with the arrogant thieves the would deny us the health care we have already paid for.

Single payer, universal coverage health care is the only sensible way to go.

Posted by: rcubedkc | February 3, 2011 7:10 PM | Report abuse

Len, your point is anchored in the practical but lane's argument is that the practical is often unconstitutional for the reasons stated above. Constitutional law is about preventing the law from encroaching upon liberty, no matter how sensible or pragmatic a law might be. People can choose not to carry insurance but then we have to be prepared to let those people die.

Posted by: thickman22 | February 3, 2011 7:29 PM | Report abuse

Posted by: rcubedkc | February 3, 2011 7:10 PM: Single payer, universal coverage health care is the only sensible way to go.
==========

rcubedkc, the closest thing to universal coverage in this country is Medicaid. Are you sure that is what you REALLY want?

And then, what do you do about the 15+ milions illegal aliens and their anchor babies? Who will pay for their health care when they are prohibited from participating?

Careful what you wish for

Posted by: asmith1 | February 3, 2011 7:31 PM | Report abuse

The poor do get healthcare in this country. Effectively, they are insured by the emergency room.

The way to motivate them to be responsible and buy a basic health insurance policy is to file Federal Tax liens on everyone who presents themselves at an ER for their "free healthcare".

Then they would have the an incentive to buy insurance and if they didn't, the IRS would garnish their wages and confiscate their assets so that the taxpayers were eventually reimubursed for subsidzing their irresponsible behavior.

That and allow health insurance to be sold across state lines, put reasonable caps on malpractice awards, eliminate coverage for cancer drugs which costs of tens of thousands of dollars per month and only prolong life for a month or two for five percent of patients and empower patients to select whatever treatment they choose as long as it is the same cost or less than the so-called entrenched "standard-of-care" and both the cost-effectiveness and quality of care would improve.

Posted by: LePauvrePapillon | February 3, 2011 7:57 PM | Report abuse

The poor do get healthcare in this country. Effectively, they are insured by the emergency room.

The way to motivate them to be responsible and buy a basic health insurance policy is to file Federal Tax liens on everyone who presents themselves at an ER for their "free healthcare".

Then they would have the an incentive to buy insurance and if they didn't, the IRS would garnish their wages and confiscate their assets so that the taxpayers were eventually reimbursed for subsidizing their irresponsible behavior.

That and allow health insurance to be sold across state lines, put reasonable caps on malpractice awards, eliminate coverage for cancer drugs which costs of tens of thousands of dollars per month and only prolong life for a month or two for five percent of patients and empower patients to select whatever treatment they choose as long as it is the same cost or less than the so-called entrenched "standard-of-care" and both the cost-effectiveness and quality of care would improve.

Posted by: LePauvrePapillon | February 3, 2011 7:58 PM | Report abuse

Health care is a side issue. Let's just have the real debate: does the constitution mean anything, or not? Defenders of the health care act and the individual mandate are arguing in effect that the constitution has no meaning, and government has no meaningful limits. Playing semantic games and rationalizing from bald declarations and divining emanations from penumbras is about one thing: destroying the constitution and rule of law.

I'm all for health care, but I recognize that there's no place for it under the constitution. Can we just get a constitutional amendment to authorize this? That's what the framers intended: to change the constitution as much and as often as needed to meet the contemporary needs of the country.

Posted by: _BSH | February 3, 2011 8:04 PM | Report abuse

Republican opposed every progressive piece of legislation in the twentieth, and now twenty first, centuries. They labeled everything from the rural electrification administration that brought electricity to rural areas in the 1930s to social security and medicare as "socialism." They now claim health care reform is "socialism." If republicans had their way America would be a third world backwater with very rich and very poor and zero middle class. Republicans always look backward, oppose progress, and are against the modern world. I prefer electricity and indoor plumbing thank you very much. If republicans want to go live in grass huts then let them.

Posted by: treefrog2 | February 3, 2011 8:05 PM | Report abuse

Let's simplify the process. Hospitals and health providers can refuse to treat people who don't have insurance unless they have made prior arrangements for treatment. So if you don't have insurance you pay upfront. A fee of $5,000 up front doesn't sound to expensive. Of course if you're on a trip or not near your hospital it might get exciting. But you won't have anyone telling you what insurance you have to have. You might consider having clinics run by the local health department.

Posted by: johnturkal1 | February 3, 2011 8:17 PM | Report abuse

Here's the problem with the individual mandate. Answer this question: based on the HHS+IRS formula to determine if you and/or your family qualifies for premium assistance/subsidy, you don't qualify because your modified adjusted gross income is too high. But wait, your income on paper may be to high but how about your mortgage payment, electric, gas, car payment, groceries, credit card and other loan payments; they aren't deductible. So out of your monthly income you only have $100.00 more or less that is not obligated. Sorry, you are still required to buy health insurance and pay the premium. Unless, like the present majority your employer provides you and your family insurance.

But, guess what, eventhough you are now going to have to come up with the premium, you are also going to have to help, through your taxes and payroll deductions for those that the IRS says are eligible for heafty premium assistance. Wow, the double whammy.

But you that do recieve assistance, beware, if the IRS determines they paid you too much, they will either ask for it back or deduct it from future refunds.

So if they help you based on last years income information and you were unemployed and give you premium assistance based on that income for the current policy year and then you are lucky enough to get a job 6 months later, you are going to owe a portion of the subsidy back to the Gov.

This is a royal mess.

Just because you have a modified adjusted gross income that indicates you can afford the premium for coverage, doesn't mean you have "disposable" income enough to pay the premium which will definately be higher than you think.

So you will either have to come up with the money possibly by credit or loans; or you will be charged a penalty by the IRS.

What part of this disaster do some people just not understand?

Unless you are unenmployable or at the "poverty level"; you are screwed if your monthly income after living expenses doesn't leave you enough to pay for health insurance that includes all the benefits the HHS mandates and will likely cost far more then it could.

Because of the mandated benefits, many employers will have to obtain "new" group health which will cost more due to added benefits HHS mandates. So, they either pay more or drop the coverage, or ask employees to make up the added cost.

I have paid 100% of my employees group health coverage for 30 years. We have excellent coverage. But, I suspect due to the "preventative" care benefits our policy will not qualify. Don't know what I will decide to do if the premium increases.

Any business can already deduct what they pay toward employees health premiums, so the "credit to help small businesses" is a joke.The credit is not "on top of" the available business expense deduction. So someone tell me what good it is.

Posted by: fedupwithgovernment | February 3, 2011 8:21 PM | Report abuse

asmith "rcubedkc, the closest thing to universal coverage in this country is Medicaid. Are you sure that is what you REALLY want?"

I think it would be more like Medicare for all and absolutely yes, I would prefer that to the totally rotten system we now have.

As to the tens of millions of ILLEGAL ALIENS that have infested our country under both repub and dem administrations, I would use every power of the Federal government to kick each and every one out. But, the fact of the matter is we now pay for them anyway so that is just a strawman thrown in to confuse the real issue which is We the People are getting robbed blind by the insurance industry whose sole purpose is to DENY us the health care we have already paid for while skimming 30% right off the top before a single penny is paid towards the bill.

Posted by: rcubedkc | February 3, 2011 8:22 PM | Report abuse

Once the Yoo Ess embraces the idea that economic impact empowers the government to compel its citizens to behave a certain way what argument will it have left against China's one child policy or its prohibitions on strikes by organized labor?

Posted by: DJ_Spanky | February 3, 2011 8:28 PM | Report abuse

Yeah, if Congress can mandate health care, next thing you know they will be deciding that citizens can't grow and consume certain herbs--they could set up vast police forces mainly concerned with that herb, and arrest and incarcerate large numbers of citizens on the basis of their own conception of religious morality rather than any rational assessment of risk. Oh, wait . . .

Posted by: scientist1 | February 3, 2011 8:31 PM | Report abuse

No, Ruth Marcus, it's NOT your constitution. There is no remotely plausible way to justify the individual mandate under any part of the constitution. Not to mention labels on vending machines, diversity training for nurses, or most of the other 3000 pages or so of crap. The only way to reconcile the individual mandate is to say straightforwardly that the constitution has no meaning, and that government can do whatever it wants to because it said so.

The gap between what the constitution SAYS and what statists like Marcus claim it means has grown so wide that the gulf is insuperable. It's like they are wide-eyed, pathological liars. Congress has no right to tell me I have to buy something and it has to have certain characteristics, just like they have no right to tell me what I can sell at my garage sale or how to do it. Claims to the contrary are just unfounded, made up out of thin air. Wickard v Filburn is not founded on any constitutional principle; it's made up whole cloth, a fabrication, a charade. It just goes to illustrate the power of insistently repeating a lie often enough.

Nobody in Congress, in the Administration, or in the courts today can tell anyone anything about what the constitution means. The men who wrote it explained it pretty thoroughly in a number of letters, essays, speeches, and papers.

"With respect to the two words 'general welfare,' I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators." --James Madison

"On every question of construction, (we must) carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." -Thomas Jefferson, written to Supreme Court Justice William Johnson

Posted by: _BSH | February 3, 2011 8:31 PM | Report abuse

Maybe it's time we all just admit that Congress was earnestly trying to do the right thing, but really mucked things up.

Single payer would have made much more sense than what they ended up implementing.

The first goal of health care reform should have been to address the high cost of health care. Sadly, they threw middle class Americans under the bus to provide subsidized insurance for 30 million people instead. Using the current, broken system.

This is like fixing your transportation problem by adding more people to a bus with a flat tire. Not the correct or sensible approach.

Posted by: postfan1 | February 3, 2011 8:52 PM | Report abuse

This column is the perfect study in GOP deception. The phrase "As a policy matter, there is a case to be made that an individual mandate to buy certain health insurance from certain companies" is a deception wrapped in the cloak of reasonableness. The FACT is that people would be free to buy ANY insurance policy as long as it was reasonably comprehensive. In addition, they would not have to pay for insurance at all if they did not earn enough to pay for it.

Posted by: JimZ1 | February 3, 2011 9:34 PM | Report abuse

The problem is that access to health care is through health insurance. Both the consumer of health care and the producer of health care are the clients of the health insurance company.

Since single payor could not make it through our politics, the compromise was to continue to run it through the middle man, the insurer. The most important thing the middle man manages is the margin between what he pays (to the real health care providers) and what he gets (in premiums, from health insurance purchasers). Rather than normal market forces brought together - demand and supply - we have the middle man who doesn't really have to care. Enshrining health insurance into law simply enshrined the middle man and his profits - sort of like financial institutions "too big to fail."

I do think a national health care program is important and it will ultimately bring greater rationality to the health care system than what we have had with the "free market". The free market couldn't do it; it failed us as the regulator of supply and demand. It may be it failed because ultimately the demand for health care is inelastic - when it is needed, it cannot be done without. When apples are priced too high, you can buy oranges. If your medical costs are too high, what is the alternative? Prayer and voo-doo? The provider can charge what the market will bear and when it is your life, you will pay down to your last penny, or just go ahead and die to try to protect your family from financial ruin.

Health care is like clean water - you can't live long without it. Our governments (local,state, and national) are definitely responsible for and involved in assuring that we have clean water. Governments are responsible for assuring our food supply is safe. Thirty and fourty years ago we began to realize that governments had to mandate actions which kept the air clean, by cutting emissions from cars and industry. Most industrial governments realize that government action is needed to avoid global warming - we just don't accept that yet.

The same with health care. Those things that keep us alive are the legitimate concern of government, even to actually arranging the market through which the consumer and provider meet.

Amen.

Posted by: amelia45 | February 3, 2011 9:40 PM | Report abuse

There can be a difference between what you and a health insurance company consider healthy. Some insurers will say that you have a health condition if you smoke, are overweight, are taking prescriptions, or had a medical condition in the past. If this describes you, you may want to search and read “Wise Health Insurance” on the web.

Posted by: dichack | February 4, 2011 12:45 AM | Report abuse

"The individual mandate involves less intrusion in private markets and more personal choice than alternatives such as a single-payer system, Ezra notes ..."

Yea.

And I'd rather be devoured by a shark than be burned to death.

The straws that left are trying to grasp grow few :)

Posted by: madhtr | February 4, 2011 12:55 AM | Report abuse

I think what Mr. Lane misses is that, depending on how you read the Necessary & Proper Clause, is that you can get away "the broccoli" theory. The limits on Congress's power comes from the Interstate Commerce Clause and not the Necessary and Proper Clause. The Necessary and Proper Clause's limits are from other parts of the Constitution (e.g., can't abridge Free Speech to carry out an Interstate Commerce scheme) and the rational relation test (e.g., can't tell people to wear pink shirts to improve healthcare).

And the liberty argument that Mr. Lane advances suffers from the same flaw as Mr. Klein's argument. The Constitution isn't a policy document. We may not like how much or how little liberty we are guaranteed under the Constitution, but the Constitution is covenant on our self government -- that's all.

At the end of the day, the activity/inactivity distinction, while quite real a restraint on the Interstate Commerce Clause is a manufactured limitation on the Necessary & Proper Clause conceived my libertarian thinkers. If you want to stop the federal government from forcing us to purchase broccoli, the remedy isn't in the Supreme Court -- it involves voting out your legislators and bringing in new ones who will get rid of bad legislation!

Posted by: pensfan3 | February 4, 2011 1:28 AM | Report abuse

Contrary to what individual Marxists post here or what other Marxist "journalists" post elsewhere; the Constitution stands. NO one has the right to tell others what to do. Period. Obviously, some do not believe that. They believe they are "smarter" than others and that their "higher level of intelligence" gives them the "right" to tell/force others to live the way THEY deem fit and necessary. Uh...wrong. If you wish an "UPRISING" similar to what is currently going on in Egypt...go ahead and try it. I would encourarge you to have a big bowl of wheaties before you start though.

Posted by: NativeCowboy | February 4, 2011 7:22 AM | Report abuse

Mr. Lane makes a valid point, but the problem is that conservatives always make the same argument against ANY regulation or government intrusion: If we give them an inch, they'll take a mile. The old slippery slope. So therefore, they always fight for doing nothing at all, and all the problems get worse. Why can't people seek reasonable middle ground on these things? Don't they see that we're constantly shooting ourselves in the foot?

Posted by: smartcritic1 | February 4, 2011 7:29 AM | Report abuse

You didn't get mad when the Supreme Court stopped a legal recount and appointed a President.

You didn't get mad when Cheney allowed Energy company officials to dictate energy policy.

You didn't get mad when a covert CIA operative got outed.

You didn't get mad when the Patriot Act got passed.

You didn't get mad when we illegally invaded a country that posed no threat to us.

You didn't get mad when we spent over 600 billion (and counting) on said illegal war.

You didn't get mad when over 10 billion dollars just disappeared in Iraq.

You didn't get mad when you saw the Abu Grahib photos.

You didn't get mad when you found out we were torturing people.

You didn't get mad when the government was illegally wiretapping Americans.

You didn't get mad when we didn't catch Bin Laden.

You didn't get mad when you saw the horrible conditions at Walter Reed.

You didn't get mad when we let a major US city drown.

You didn't get mad when the deficit hit the trillion dollar mark.

You finally got mad when.. when... wait for it... when the government decided that people in America deserved the right to see a doctor if they are sick. Yes, illegal wars, lies, corruption, torture, stealing your tax dollars to make the rich richer, are all ok with you but helping other Americans... well “f” that. That about right?

Posted by: kparc1212 | February 4, 2011 7:51 AM | Report abuse

NO one has the right to tell others what to do. Period. Obviously, some do not believe that. Posted by: NativeCowboy

Unless it to say, "NO you can't have an abortion, NO gays can't serve in the Military, NO gays can't marry, NO you can't smoke mj, NO you can't drive a car unless you have insurance, NO you can't hire children to work, NO smoking, NO prostitution, NO right turn on red.

What is NativeCowboy talking about?

Posted by: kparc1212 | February 4, 2011 7:59 AM | Report abuse

most of the libs commenting on here still do not understand the far reaching impact this Bill would have if fully enacted. but then again maybe they want to government to dictate everything they do, think, act, and eat. If so then they should go back and read 1984 again and again, until you actually UNDERSTAND the impact of the individual mandate.

and judicial scholar, Ha Ha, Ezra klein, is a JOURNOLISTA punk.

Posted by: morphy | February 4, 2011 8:37 AM | Report abuse

"What I'd like to know is who exactly do all these people who don't want to buy health insurance expect to pay the tab when they get sick?"

Of course we want to buy insurance. Duh. We want to buy our OWN insurance that works for OUR situation, not some gubmint-dictated insurance written by a bunch of pols.

Quick example: my wife is in her fifties, and we no longer need maternity insurance coverage. So, I want to shop for a policy that doesn't include that as coverage. Why pay for something we'll never need? But if we go the way of the Health Care insurance act, I won't have that choice. All the plans in the exchanges will have to include maternity care. I'll have to pay for it whether I like it or not.

An even more difficult problem is that the current plan opens up medical payment decisions to the political process. For example, there have been over 700 exceptions granted to corporations by the Obama administration. That is the most asinine process I can imagine. Medical decisions are hard enough without layering a bunch of politicians on top of it all. Who do you trust? Your doctor or your representative? I say the pol has absolutely no business being involved in the first place.

Get your laws off my body.

Posted by: dmarney | February 4, 2011 8:38 AM | Report abuse

@tarroya, the case you describe involved sailors who chose to enter the Navy (the latter of which is a specific enumerated power of the federal government). That sailors (members of the federal Navy) may have been compelled to provide medical care for other sailors does not mean that Jefferson or anyone else at that time would have thought it constitutional for private citizens to be compelled by the government to purchase products or services from private entities.

Posted by: KPOM1 | February 4, 2011 8:40 AM | Report abuse

This debate on the individual mandate is a true dilemma. On the one hand, every individual other than those who truly are impoverished has a responsibility to pay for whatever healthcare services they and/or their family members may need during their lifetimes. Since, no one can predict their future health, which includes accidents and other external incidents, the only way to ensure against a catastrophic financial loss is to have healthcare insurance. Most Americans could not afford to pay their medical expenses out-of-pocket. Because hospitals are required by law to treat everyone regardless of their insurance status, those with no healthcare insurance or policies that cover very little eventually will wind up in the "system" and run up huge medical bills that they won't be able to pay. Those losses then will be passed on to 3rd party payors (insurance companies) who simply will pass the costs on to their responsible policyholders with higher premiums. This is analogous to someone owning a house or car that isn't insured and, if it is destroyed or damaged, the rest of us pay to have those things repaired or replaced. That is a slap in the face to anyone who takes responsibility by protecting themselves with insurance.

On the other hand, if government is to mandate that everyone have healthcare insurance, then it was incumbent on them also to ensure that the cost to have it is as low as possible. That only could have been achieved under a single-payor (federal government) system where prices for services, including drugs could have been strictly controlled. Instead, the Republicans and some Democrats in Congress that are "in the pockets" of the health insurance and pharmaceutical companies, killed that opportunity and started a deliberate scare campaign with idiotic and untruthful claims of socialized medicine (ignoring what Medicare and the Veterans Healthcare System are) and death panels, among others. Astonishingly, they convinced the American people that a comprehensive universal coverage health insurance program with lower premiums was bad for them.

So here we are, having to choose between allowing deadbeats to get a free ride in healthcare or being required by law to pay outrageous premiums and payments to private insurance and pharmaceutical companies with their obscene profits. Adding to this outrage is that every other industrialized country manages to provide every one of their citizens with exceptional healthcare services at a fraction of what it costs us. Only in America, with its corrupt political system, do we have to endure this kind of insult while our own people continue to suffer and die needlessly.

Posted by: ProgressiveThinker | February 4, 2011 8:41 AM | Report abuse

@Kparc, you are just showing your own ignorance and lack of credible arguments to support your position. You probably argued that what Cheney, Bush, etc. did from 2001-2008 was unconstitutional. In fact, many open-minded liberals did just that. You may have been right, but unfortunately, your side didn't really challenge much in the courts. Where you did (e.g. Gonzales case), you won. So why is it so difficult for you to accept that your side is in the wrong now?

Open-minded liberals don't complain when courts require Christmas trees to be removed from public plazas, and they don't complain when state courts circumvent legislatures by creating marriage rights for gays. Why, then, is it "judicial activism" for a judge to apply his reasoned analysis of the Constitution to an act of the federal legislature?

Posted by: KPOM1 | February 4, 2011 8:45 AM | Report abuse

The bill was unconstitutional and the president even admitted that when he was campagining against Cliton because she had a similar mandate in her version. KNOWING full well and admitting it a few years earlier but yet he and his Democrats put it through anyway against the will of the majority of the public (I believe at least 60% of the people didn't want the plan the way it was pushed through, not that anyone got a chance to read it).

Posted by: sgtkjt | February 4, 2011 8:45 AM | Report abuse

The bill was unconstitutional and the president even admitted that when he was campagining against Cliton because she had a similar mandate in her version. KNOWING full well and admitting it a few years earlier but yet he and his Democrats put it through anyway against the will of the majority of the public (I believe at least 60% of the people didn't want the plan the way it was pushed through, not that anyone got a chance to read it).

Posted by: sgtkjt | February 4, 2011 8:46 AM | Report abuse

@pensfan3, if we always just elected "good legislators" we wouldn't need a Constitution at all. If we all just did " the right thing" we wouldn't need legislators at all. However, we don't live in that perfect world, so we established a legislature to govern us, and we established a Consitution to establish rules that the legislature must follow. They didn't follow them in ACA.

Posted by: KPOM1 | February 4, 2011 8:47 AM | Report abuse

Ah, Charles but you see for the left, the end does in deed justify the means. It's in their intellectual pedigree, as expressed by one of THEIR founding fathers.

"It's so good, it's just GOT to be Constitutional!" is their motto. Never mind what the Constitution actually SAYS, they say. Why it's a "living, breathing document" that means whatever they want it to mean at any given time.

Posted by: pijacobsen | February 4, 2011 8:51 AM | Report abuse

Lane, healthcare gives you the liberty to have peace of mind when you're ill. This whole conservative "liberty" issue is so simple it's silly. Spare us the Big Brother, sky-is-falling, fear-mongering. Pathetic.

Posted by: jckdoors | February 4, 2011 8:54 AM | Report abuse

@KPOM1 That is unfortunate, but that is also the solution that our Constitution provides. We may wish we had a better solution, but one of the most significant powers against a government run amok is the power to vote. Just because we don't like the result, we can't manufacture reasons for a court to strike down a regulation, and we can't re-write our Constitution based on wholly novel and unprecedented theories of interpretation.

I think libertarian theories advanced against the individual mandate are interesting and powerful, but they are simply without support. At the end of the day, the arguments come down to people saying "surely, the Constitution means you can't force me to buy insurance." Absent from the discussion is, "why not?" Where does it say the government can't do this? The weight of our understanding of the Necessary and Proper Clause says it can.

The onus is on those libertarian thinkers to provide a logically consistent reading of the Necessary and Proper Clause that prohibits the individual mandate but doesn't gut every other significant piece of federal law under the Commerce Clause. And if the response is "maybe we should gut other federal legislation," we should seriously think about whether it is worth losing significant swaths of federal criminal law, civil rights law, and other important legislation.

Posted by: pensfan3 | February 4, 2011 9:08 AM | Report abuse

If it wasn't so sad, it'd be funny. Those railing against the individual mandate are the same one espousing the "I've got mine, screw you" governmental philosophy - those that don't want to be paying for the lazy and the shiftless that haven't worked themselves to a position in life of paying their own way, right? What their simple little minds fail to realize is that they are paying for the health care of every uninsured person that ends up in the emergency room - they're paying for the care of the uninsured with the increased price of their own policies. Wouldn't the more intelligent thing be for all those einsteins to actually support the individual mandate, then their hard earned dollars would only be paying for their own selfish narrowminded selves.

Posted by: JilliB | February 4, 2011 9:47 AM | Report abuse

Specious arguments abound. As a man of 47 I clearly recall a time when the only insurance offered through employers was a major medical policy to cover unanticipated serious injury or illness. This was commonly referred to as "hospitalisation" insurance. All other medical expenses; annual physicals, trips to the doctor for medications needed for minor illneses or for a few stiches to bind a wound were covered out-of-pocket by the patient. This structure plainly forced the consumer of medical services to budget the expense. You child has the sniffles: keep her home from school. In the modern world of employee/governement subsidised medicine any trip to the doctor for even the most trivial of concerns doesn't cost but the copay. This is frankly nuts. We've spent so much time and effort in attempts to limit out-of-pocket expenses to the end consumer that we have created a monster. Free market economics and personal responsibility have evaporated from the health care system. This absurd idea that mandates from a government already trillions of dollars in debt will solve the problem is the sad result.

Posted by: OwenNewJerseyMoney | February 4, 2011 9:56 AM | Report abuse

In the law, there are no "unique" cases; there are only cases of "first impression."

If we don't nip this mandate in the bud now, we will see other mandates in the future.

Posted by: questioneverything | February 4, 2011 10:15 AM | Report abuse

In the law, there are no "unique" cases; there are only cases of "first impression."

If we don't nip this mandate in the bud now, we will see other mandates in the future.

Posted by: questioneverything | February 4, 2011 10:16 AM | Report abuse

Struggling to read and interpret the leviathan monstrosity known euphemistically as 'Obamacare' aside, the true intent is redistribution of wealth under the guise of fairness i.e. socialism. In a word, tyranny.

Posted by: LizardLips | February 4, 2011 10:35 AM | Report abuse

@_BSH You may not like Wickard, but it is the law. So much of the Constitution is unclear. That is why it has been committed to the Supreme Court to act as the final decider on what the Constitution means. In the case of Wickard, the Court said Congress could go that far under the Necessary and Proper Clause (+Commerce Clause). Where the text is unclear -- as it is w/ the Necessary and Proper Clause -- the Supreme Court's reasoning in Wickard stands as a definitive statement on what our Constitution means.

Posted by: pensfan3 | February 4, 2011 10:50 AM | Report abuse

It is long past time to re-visit Wickard.

Posted by: questioneverything | February 4, 2011 11:02 AM | Report abuse

All of the liberals argue that people who refuse to buy health insurance are making people that buy insurance foot their bill from increased premiums.

The very next day they complain that people are losing their homes and going bankrupt because they have catastrophic medical bills and no insurance to pay for it.

Which is it? If the hospital is picking up the tab and passing the cost to others, how are these people going bankrupt if they don't have to pay?

Would it be OK if Congress forced you to buy a Toyota?

How about forcing you to buy a gun?

How about forcing you to buy a health club membership?

Posted by: BigKahuna1 | February 4, 2011 12:22 PM | Report abuse

Good article. Sadly, I predict the comments will be laced with pathetic liberals spewing meaningless talking points in a vain attempt to avoid admitting they were wrong to embrace this awful piece of legislation.

I do challenge the idea that "health care for all" is necessarily a good thing. Health care is not free. Any attempt to expand it will have a price, and that price won't be cheap. I believe healthcare is something any responsible American citizen should be able to acquire at a reasonable price.

Posted by: TheLastBrainLeft | February 4, 2011 12:36 PM | Report abuse

>> This column is the perfect study in GOP deception...The FACT is that people would be free to buy ANY insurance policy as long as it was reasonably comprehensive. In addition, they would not have to pay for insurance at all if they did not earn enough to pay for it. <<

So, there is absolutely no benefit at all? If someone doesn't earn enough to pay for it now, how do they get care? Oh yeah, they can enter any ER in the country and get 'free' care. All of us that pay for insurance, pay for the hikes. With the Affordable Healthcare Act (oxymoron), those on the higher end of the income brackets will pay for the less fortunate. Wow, that's revolutionary!

But, really, this isn't just about sucking more money out of the 'rich', this is about our sovereignty...the government does NOT get to tell us what to do, we tell it what it is allowed to do to protect us and our liberties. The government is not protecting us with an individual mandate. On the flip side, passing tort reform would protect the majority of us (witness Texas).

For a group that was so anti-establishment in the 1960s and 1970s, the liberals in this country sure are eager to climb under the repressive control of the government...it's contradictory to liberal thought, you can't be in the bedroom or control a person's body (based upon privacy), but you can dictate which doctor I visit, what treatments I'm allowed to have and that I must participate in a monopolistic insurance program. Weird.

Posted by: geministorm | February 4, 2011 12:40 PM | Report abuse

"Conservatives, therefore, are not hypocritical to suggest that a single-payer system would be less libertarian but more constitutional than the health-care law’s individual mandate. .."

That strikes me as something that is entirely hypocritical of conservatives to say.

Posted by: andrew_graham | February 4, 2011 3:56 PM | Report abuse

"Conservatives, therefore, are not hypocritical to suggest that a single-payer system would be less libertarian but more constitutional than the health-care law’s individual mandate. .."

That strikes me as something that is entirely hypocritical of conservatives to say.

Posted by: andrew_graham | February 4, 2011 3:57 PM | Report abuse

"Conservatives, therefore, are not hypocritical to suggest that a single-payer system would be less libertarian but more constitutional than the health-care law’s individual mandate. .."

That strikes me as something that is entirely hypocritical of conservatives to say.

Posted by: andrew_graham | February 4, 2011 4:02 PM | Report abuse

kparc1212 wrote:
Unless it to say, "NO you can't have an abortion, NO gays can't serve in the Military, NO gays can't marry, NO you can't smoke mj, NO you can't drive a car unless you have insurance, NO you can't hire children to work, NO smoking, NO prostitution, NO right turn on red.
*****************
You've got it exactly backwards, kid. Obamacare doesn't seek to stop people from doing something. It unconstitutionally forces them to do something. To correct your screed:
You MUST have an abortion, Gays MUST serve in the military, Gays MUST marry, You MUST smoke mj, You MUST drive a car without insurance, You MUST hire children to work, You MUST smoke, You MUST prostitute, You MUST turn right on red.

And NO, the government can't constitutionally compell you to do any of these things.

Posted by: oldno7 | February 4, 2011 7:05 PM | Report abuse

Lane says he hasnt heard a convinving rebuttal to the conservative's argument equating the health care insurance mandate with any other form of coercion - if they can require you to buy health insurance, they can make you buy a car or eat vegetables. Here is the fundamental difference. I can decide never to buy a car and if I change my mind at age 80, I can pay the same for a car as a 20 year old, and my decision to wait until I needed it at 80 did not affect anyone else's cost while i am a free rider. The same with other products such as vegetable. Their use is not cost-related to the age of the user. But not so health care. And even more fundamentally, I am not really in control over whether I need health care, as I am in my decision not to eat vegetables or not use a car. I will eventually need health care. The only question is not whether but when. THAT is the rebuttal Lane misses.

Posted by: snsb18 | February 5, 2011 1:57 AM | Report abuse

Sophistry-- "... the threat to liberty, if any, comes not so much from the individual mandate itself, but from the other things Congress might do if it gets away with claiming authority for this measure under the commerce clause. ... Health care for all is a good cause. But if, in the name of that noble goal, you construe Congress's power to regulate interstate commerce so broadly as to encompass individual choices that have never previously been thought of as commercial, much less interstate, there would be nothing left of the commerce clause's restraints on Congress's power. And then, the argument goes, Congress would be free to impose far more intrusive mandates. Judge Vinson suggested that Congress 'could require that people buy and consume broccoli at regular intervals,' and that is hardly the most absurd or mischievous imaginable consequence."

Bottom line, through the "necessary and proper" clause, "general welfare", and "commerce clause", Congress has had unlimited power since the Constitution was ratified.

What holds Congress from becoming a tyrant are checks and balances, a real respect for tradition and precedent, and the people themselves. Despite-- maybe because of-- the people's mistrust, Congress has been remarkably able over 200+ years in preserving and expanding our liberties.

"... under our Constitution, the ends do not justify the means."

Nice sentiment but dishonest. The ends do not justify the means when "they" do it; the ends do justify the means when "we" do it. "We" just call it something else. I'm not criticizing, merely understanding and accepting human nature.

What Republicans and conservative judges call unconstitutional today, they would call constitutional tomorrow IF it fits their political agenda-- and this is true for Democrats, too.

Again this is not cynical; it's human nature. It's just the way we are made. Jefferson and Madison were this way (e.g., their twists and turns on slavery), and politicians are today. And so are you and so am I.

Considering human nature hasn't changed since the Founding Fathers, and our country has flourished over these many, many years, let's stop with the, "Oh my gosh, if we let them do this, they will force us to eat broccoli and the Republic will fall!" Idiotic nonsense. Yet I admit, it resonates with lots of Americans.

The proof will be when the Supreme Court rules on the individual mandate. The vote will likely go 5-4 either way, more likely for conservatives. If something is slam dunk unconstitutional, the vote would be at least 7-2. 5-4 either way is political, based purely on whether you're conservative or liberal.

The jig was up on the Supreme Court's objectivity in 2000 when Gore lost the election on a 5-4 vote that went purely on party lines.

It is rational to have the individual mandate; it was rational when Republicans were for it in 1992, and it is rational today when Democrats are for it. And everyone knows it.

Posted by: tttvance | February 5, 2011 2:41 AM | Report abuse

"you construe Congress's power to regulate interstate commerce so broadly as to encompass individual choices that have never previously been thought of as commercial, much less interstate, there would be nothing left of the commerce clause's restraints on Congress's power."

This is where the argument fails. Individual choices with regard to health insurance are indeed thought of as commercial.

Healthcare is one of the few, maybe only, commercial items that the American people believe is an entitlement....you get into a car accident and you are dying....we expect that you will be taken to a hospital and treated. Can we let people without insurance die? Therefore it is in the interest of society that we mandate that all citizens have insurance so that they have access to health care. Since society has determined that medicine is a business, that has to be the case.

Posted by: commentator3 | February 5, 2011 7:43 AM | Report abuse

"you construe Congress's power to regulate interstate commerce so broadly as to encompass individual choices that have never previously been thought of as commercial, much less interstate, there would be nothing left of the commerce clause's restraints on Congress's power."

This is where the argument fails. Individual choices with regard to health insurance are indeed thought of as commercial.

Healthcare is one of the few, maybe only, commercial items that the American people believe is an entitlement....you get into a car accident and you are dying....we expect that you will be taken to a hospital and treated. Can we let people without insurance die? Therefore it is in the interest of society that we mandate that all citizens have insurance so that they have access to health care. Since society has determined that medicine is a business, that has to be the case.

Posted by: commentator3 | February 5, 2011 7:43 AM | Report abuse

len13:

Yes, your characterization of theh problem is absolutey correct. The insurance argument conservatives are making is a canard, the fact is no-one legitimately opts out of health care. If you don't have insurance and can't pay out-of-pocket the costs are absorbed by people who have insurance. Doctors cannot refuse to treat ill people no matter their ability to pay. It's even worse in that the poor can't get preventative care and only end up getting ER treatment when they are really sick, which is really expensive and poor use of resources, since that money is better spent helping people not be sick in the first place.

Also, this argument is the one used by one of the judges that upheld the law as constitutional. The current count is a tie 2-2.

But it's ok, if the individual mandate is deemed unconstitutional by judicial fiat, single payer is a better solution anyway. Just get rid of the middleman insurance co.'s. Medicare for everyone.


Posted by: trey | February 3, 2011 4:53 PM | Report abuse

000000000000000000000000000000000000000000000


Yes, your characterization of theh problem is absolutey correct. The insurance argument conservatives are making is a canard, the fact is no-one legitimately opts out of EATING. If you don't have THE MONEYthe costs are absorbed by OTHER people Doctors cannot refuse to treat ill people no matter their ability to pay. (Actually, they can, unless it is an emergency situation) It's even worse in that the PEOPLE WHO CAN'T AFFORD TO EAT WELL GET CARDIOVASCULAR AND DISEASES OF OVERWEIGHT , which is really expensive and poor use of FARMER resources, since that money is better spent helping people TO MAINTAIN THEIR HELTH IN THE FIRST PLACE. But it's ok, if the individual mandate is deemed unconstitutional by judicial fiat, single payer is a better solution anyway. Just get rid of the middleman insurance co.'s. Medicare for everyone. AND OF COURSE, MEDICARE IS AN ABSOLUTELY FABULOUSLY RUN COMPANY, WITH AGRESSIVE OVERSIGHT, AND HAS NOT HAD ONE CASE OF FRAUD IN THE PAST SEVERAL YEARS, AND OF COURSE IT IS NOT RUNNING ANY SORT OF A DEFICIT, AND OF COURSE THE CURRENT CLAIMS ON MEDICARE ARE LESS THAN 42 TRILLION DOLLARS ON AN ACCRUAL BASIS, AND WOULD REQUIRE EVERYBODY TO PAY AN ADDITIONAL 15-18% OF THEIR GROSS INCOME.

If you want to look at France as a model, look at all of France. If you want the government to be able to make you do things that are good for you, hope you enjoy the government directed and ordered diets, as that would be a very effective way to ensure that everybody has good health

and bad Freedom.


Posted by: PALADIN7E | February 5, 2011 8:27 AM | Report abuse

The bottom line in all this health care debacle is that I, like many Americans, want affordable health care for as many people as possible, preferably everyone. Why do we have the most expensive health care in the world that covers the fewest individuals of any civilized country? I refute those who say, Mr. Boehner, that we have the best health care in the world. Nope. Perhaps you and Congress do, but not the masses.

We need to lower health care costs, provide quality care and cover more individuals, by individual mandate. single payer, or whatever.

Dear Congress: quit pointing fingers, figure it out and get it done.

Posted by: gfoster56 | February 5, 2011 9:25 AM | Report abuse

If we believe the real threat is what congress "might" do, then we're in real trouble. We have checks and balances for that.

Get real. The issue on the mandate is simple: how do we "pay" for those who use our health care system for free (the law requires hospitals to treat people, and we pay for that - about $1000 each). If I am paying $1000 annually to pay for those who choose not to have health care, then we either forbid them from getting treated, or we force them to buy insurance. That's it. You decide.

Posted by: glenn13 | February 5, 2011 10:13 AM | Report abuse

Mr Lane,

What you and fellow conservatives seem to ignore in your rush to condemn "big government intrusion" is the fact that the health care mandate does not force economic activity on those who would otherwise remain inactive. While it would require that everyone hold health insurance, that requirement is simply a way to regulate the costs of health care, which is the economic activity in question. People are going to "purchase" health care whether or not they have insurance. Requiring individuals to hold insurance simply ensures that costs stay more under control than they would if those with insurance continue to pay both for their own care AND for the care of those who run up health care costs they cannot afford out of pocket but do not have insurance.

This is a key distinction. At no point does this mandate force a person to purchase anything they are not already going to purchase, since at some point or another everyone will need health care and will need to pay for it. Thus, it is not the same as, for example, the car argument that seems so popular. One could easily choose to never own a vehicle, but one cannot choose to not get sick or injured. So the government cannot mandate that everyone buy a car, or a particular type of car (though state governments can mandate that those who do purchase care purchase insurance for them), but they are well within the constitution to require insurance to regulate for economic activity (health care) that they will engage in. In fact, the SCOTUS has a history of ruling in favor of such regulation, especially when such regulation deals with economic activities that have a large impact of the prices of a particular market, as is the case with health care.

Though not particularly relevant to the health care argument, what I do find amusing is that conservatives are using an argument that would pull the rug right from under one of their own long term economic and governmental goals, the privatization of social security. While partial privatization would allow individuals the choice to invest in the market or not, full privatization, which has been a conservative goal for a while, would require that individuals invest their own money in the market, forcing them to purchase products on the private market, yet with the gain/loss being taken by the government. All of this would be on considerably less solid legal ground, since, unlike the health care mandate, it would be done solely to generate income for the government to help pay for social security, as opposed to the health care mandate which will help regulate prices for health care.

Posted by: johnqpublic1 | February 5, 2011 12:20 PM | Report abuse

Get a Transcript of "Frontline: Sick Around The World" (PBS), read it, then tell me why America cannot have a Health care program as good as one of the six nations which were interviewed. I am presently being forced to pay a portion of persons without health insurance who make use of the ERs. Is that Constitutional? I don't think so.

Posted by: Japanesegardendocent | February 5, 2011 12:50 PM | Report abuse

Whatever. More blah, blah, blah health care reform. Let's get this to the Supreme Court and quit jawing around. This is a waste of time and money.

Posted by: dparks2 | February 5, 2011 6:33 PM | Report abuse

The constitution is very clear on this. "Obamacare" violates the authority congress has.
The biggest issue (if you've actually read all 3000+ pages) is that if you do NOT buy a product that the federal Govt can fine you. Not tax you and provide the service, just fine you for not having insurance.
This exceeds the enumerated powers that Congress has. I've seen references to Federal income tax and car insurance as "well they can do that" but Guess what?
They cant. Federal income tax is to be paid by citizens of the United states, Gov't employees and the DOD, the only other people that are liable for federal income tax are those who conduct international commerse. The problem here is The average person is a sovereign citizen of their STATE. We do not had federal ID's. We have state IDs. Because of this, Federal income tax violates article 16 section 847 of the US constitution. In regards to car insurance. 1, you are not forced to buy a car therefore aren't forced to buy car insurance. 2, there is no federal mandate for insurance, each state has different enermerated powers that require car insurance, therefore it falls within the commerse clause.

Now for the REAL sticklers here:
1, how do you fine illegal immigrants?
2, What personal liberties are you required to give up to have national health care?
3, Cite the constitutional amendment that grants congress to remove those RIGHTS as granted by the constitution. Please feel free to add court cases to support your position because I will shoot them down if you don't.
4, are members of Congress and the administrative/executive branch of the Federal Government willing (or mandated) to accept the very same health care as the average voting constituent?

While it is a nobel, laudable idea to want universal health care in the US, it simply cannot be accomplished by Obama, by the Republicans or by the Democrats without stripping americans of their constitutionally protected Rights.
Please also note that since a Federal judge has ruled All of Obamacare unconstitutional, the press to continue deployment Spits in the face of our Judicial system and is also contempt of court.

Posted by: RoninDallas | February 6, 2011 5:33 AM | Report abuse

The Obamacare is a lie rapped in a Christmas present that looks good from the outside but is a sick vial underhanded bill that the American public never wanted. This is the same thing Hitler did in the late 1930 as part of his social take over of Germany, Obamacare is not the cure it is the poison that kills our economy. Repeal Obamacare and replace it with sensible solutions that have teeth like Tort reform, cross state line buying of insurance and no mandate to buy.

Posted by: Richie5 | February 6, 2011 8:56 AM | Report abuse

The Obamacare is a lie rapped in a Christmas present that looks good from the outside but is a sick vial underhanded bill that the American public never wanted. This is the same thing Hitler did in the late 1930 as part of his social take over of Germany, Obamacare is not the cure it is the poison that kills our economy. Repeal Obamacare and replace it with sensible solutions that have teeth like Tort reform, cross state line buying of insurance and no mandate to buy.

Posted by: Richie5 | February 6, 2011 8:57 AM | Report abuse

The Obamacare is a lie rapped in a Christmas present that looks good from the outside but is a sick vial underhanded bill that the American public never wanted. This is the same thing Hitler did in the late 1930 as part of his social take over of Germany, Obamacare is not the cure it is the poison that kills our economy. Repeal Obamacare and replace it with sensible solutions that have teeth like Tort reform, cross state line buying of insurance and no mandate to buy.

Posted by: Richie5 | February 6, 2011 8:58 AM | Report abuse

social security will be broke by 2031, the post office has to close half its post offices. the VA is working with a shoe string budget, the new rocket that was to bring us back to the moon has been cut. medicare is bust so is Medicaid all the states are cutting there budgets and services. in case you dont know this but our government is like the Titanic and its taking on water and instead of looking for a life vest and a rowboat a lot of you seem to think its better to jump on board thinking the captain will pump the water out with a spoon.

Posted by: getsix1 | February 6, 2011 12:39 PM | Report abuse

_BSH: "Nobody in Congress, in the Administration, or in the courts today can tell anyone anything about what the constitution means. The men who wrote it explained it pretty thoroughly in a number of letters, essays, speeches, and papers."

You selectively use quotes from Madison and Jefferson to "prove" we know from the Founders very words exactly what the Constitution means. I can play that game too.

Madison, Federalist 44: “No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included.”

Alexander Hamilton used Madison’s own words (to Madison’s discomfiture) to argue the constitutionality of the National Bank through the “necessary and proper“ clause. Hamilton won; Madison and Jefferson lost. George Washington signed it into law, and in 1819 John Marshall’s court ruled it constitutional.

From the very beginning, our Constitution was been interpreted as being quite elastic. It depends on who is doing the interpreting, and what it is they want from that cetain interpretation. In 1992 Republicans favored an individual mandate, and now they don't. Because they have a better understanding of the Founder's original intent? Oh, please.

It is human nature to bend words to one’s benefit. Charles Pinckney convincingly argued to South Carolinians that the Constitution secured the slave trade: “By this settlement we have secured an unlimited importation of negroes for twenty years. Nor is it declared that the importation shall be then stopped; it may be continued.” (That certainly wasn’t Madison’s interpretation of Article, section 9.)

And your beloved Jefferson (who with an astonishing overreach of executive power, purchased Louisiana): “Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human. … Laws and institutions must go hand in hand with the progress of the human mind. … as new discoveries are made … institutions must advance also, and keep pace with the times....”

The Founding Fathers, Jefferson and Madison included, were politicians and human beings-- brilliant, absolutely; principled in many ways; but flawed and expedient when it suited their purposes and their view of the world.

In your Glenn Beck, Tea Party distorted world, you make believe that every delegate who signed the constitution (Jefferson wasn't even there) thought the exact same thoughts and interpreted the constitution precisely the same way. Sophomoric nonsense.

Posted by: tttvance | February 6, 2011 3:43 PM | Report abuse

_BSH: "No, Ruth Marcus, it's NOT your constitution. ... The only way to reconcile the individual mandate is to say straightforwardly that the constitution has no meaning, and that government can do whatever it wants to because it said so."

Yes, it is our Constitution. I repeat what I wrote on Feb 5, 2:41am (check out the entire post): Bottom line, through the "necessary and proper" clause, "general welfare", and "commerce clause", Congress has held unlimited power since the Constitution was ratified.

What holds Congress from becoming a tyrant are checks and balances, a real respect for tradition and precedent, and the people themselves. Despite-- maybe because of-- the people's mistrust, Congress has been remarkably able over 200+ years in preserving and expanding our liberties.

Providing health care for all would expand liberty for all Americans-- at least those who truly believe in E Pluribus Unum.

Posted by: tttvance | February 6, 2011 3:52 PM | Report abuse

This is not about the "right" to health care. The government has never denied anyone access to health care they way that politicians try to limit speech, or abortions. Rather, it is solely about whether some people can force other to pay for their health care. So that a large number of people are banning together claiming they have a "right" to steal from a minority or "rich" people to pay for their insurance. Socialism is theft. And they are using the tax system of the government to steal for them.

Posted by: SFreason | February 7, 2011 4:35 AM | Report abuse

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