The conservative argument against the individual mandate, a tax levied on people who avoid buying health insurance, is as powerful as it is simplistic: If the federal government can force you to buy health insurance, then it can make you do anything. It's a critique liberals need to answer more forcefully. The problem is that policy argument for the individual mandate -- that the only way a universal health insurance scheme works is with an federal mandate -- is closely related to the constitutional argument.
"The idea behind limited and enumerated powers is that the federal government can act when there's a genuinely federal problem," explains Yale Law Professor Jack Balkin. On the policy side, "what we're asking is whether [health care insurance] is a genuinely federal problem. And the constitutional question is whether it's a genuinely federal problem."
Does health care of Americans fall into the "general welfare" of the people, in other words. If it does, then health care is a federal issue, and so is mandating and regulating health insurance as a product. So what about the argument that the "government can force you to buy anything now?" Serwer addresses that as well.
That's not a trivial question. But recognizing that the Commerce Clause gives the federal government authority to regulate health insurance doesn't mean that Steve Jobs is the only thing standing between America and the great Microsoft Zune Mandate of 2015. Health insurance is a specific type of product. Without some kind of federal mechanism, you can't preserve the private insurance market and ensure affordable universal coverage. States that impose mandates will bear the costs of providing insurance for those that don't. This is why Hudson's argument that the Commerce Clause doesn't give the government the authority to regulate economic "inactivity" in this context rings hollow -- you can't actually choose not to participate in the health insurance market, because deciding not to buy health insurance drastically affects everyone else.
While the Framers may not have predicted the rise of a complex interstate health insurance market, that's no more an argument against the individual mandate than the failure to include thermal imaging devices in the 4th Amendment. "The Founders' logic was that the enumerated powers are to map on to areas where you need a federal solution," says Balkin. "You couldn't do this with cars, you couldn't do this with cell phones, you couldn't do this with Cuisinarts. [Health] insurance is special." Conservatives worried about a "food mandate" might remember that unlike health insurance, the price of food doesn't go up dramatically when someone waits until they're starving to eat.
There are a number of factors that make mandating buying health insurance a unique situation that doesn't apply to computers or rutabagas or plastic flamingos. Not buying health insurance affects the people who do. The unique situation of health insurance itself makes the sufficiently narrow argument to pass the Commerce Clause.
Serwer's middle-school debate club argument only works if you believe the federal government is in the business of making sure all Americans have affordable health insurance which is different from affordable health care.
ReplyDeleteThat failure of logic leads to the elimination of all private health insurers and single-payer government health care as a result.
That is what Obamacare is all about. There are only two logical conclusions to the law: single-payer government health care or the complete repeal of the law. There is no sustainable status quo from enacting this monstrosity. Either this law wipes out health insurance companies or it is taken off the books. There is no middle ground.
And to continue, what business does the federal government have in providing affordable health care anyway?
ReplyDeleteWe have the best doctors, hospitals, and pharmaceutical companies in the world due to free market principles.
There's a reason for that.
Here's Serwer's mistake:
ReplyDeleteWhile the Framers may not have predicted the rise of a complex interstate health insurance market...
There is no interstate health insurance market. There never has been. Even with Obamacare, it still doesn't exist.
Does health care of Americans fall into the "general welfare" of the people, in other words. If it does, then health care is a federal issue, and so is mandating and regulating health insurance as a product.
I'm with Anonymous (@1:29) on this; how is this a federal issue? You say it is but don't give any legitimate reasons why it is so.
Here's the problem. With Wickard, it was determined that a farmer growing wheat for personal purposes and not for sale was subject to federal regulation (which is ridiculous anyway, but that's for another time). The difference between the farmer and someone who doesn't buy health insurance is the former is doing something, while the latter isn't. That is the crux of the argument, what is commerce. The idea that a person's life is simply that of a piece of commerce, as I've said repeatedly, gives the government control over that person; serfdom.
But recognizing that the Commerce Clause gives the federal government authority to regulate health insurance doesn't mean that Steve Jobs is the only thing standing between America and the great Microsoft Zune Mandate of 2015.
ReplyDeleteThat's a stupid analogy.
Conservatives worried about a "food mandate" might remember that unlike health insurance, the price of food doesn't go up dramatically when someone waits until they're starving to eat.
That isn't the point and he knows it. It does give the government the power to force what we eat and what we do in order to keep health care costs down. Remember the Kagan confirmation? She was asked if the government could, under the Constitution, mandate what people eat under Obamacare. She dodged the question; but I have no doubt she believes it would.
And as far as the Zune Mandate of 2015, expect the government to use the power given to it, even if it isn't in the Constitution.
By the way, liberals love using the mandate that people have to buy car insurance to drive on public roads. Well, I'm going to use it against them.
ReplyDeleteThe argument that car insurance is for the general welfare of the people applies. But guess what? It isn't a federal issue. Car insurance isn't regulated by Congress via the Commerce Clause. Even when people drive across state lines or use federal roads, the federal government isn't involved in car insurance or driving. If someone without car insurance gets in an accident in a different state than the one they live in, the federal government has no role.
Why is health care and health insurance a federal issue?
There is no legitimate argument as to why health care is a federal issue. None whatsoever. If the state wants to mandate it, then they have to provide the means to make it affordable.
ReplyDeleteSo let's take a look at the state with the mandate, Massachusetts:
"For instance, as state tax collections plunged from their recent high of $20.9 billion in fiscal 2008 to a projected $19.1 billion this fiscal year, spending on Medicaid, which is shared between the state and federal governments, rose from $8.2 billion to an estimated $10.2 billion this fiscal year, according to figures the Patrick administration and Treasurer Tim Cahill included in a recent statement to bondholders."
The state's share of Medicaid is bankrupting it. In just four years it's already more than half of the state's revenues.
And you called it a success earlier this week?
Justify that.
Let me add this. The first sentence quoted from the Serwer piece:
ReplyDeleteThe conservative argument against the individual mandate, a tax levied on people who avoid buying health insurance...
is completely wrong. Conservatives don't call it a tax. Democrats wrote the mandate to be a penalty to avoid the political fallout of raising the income taxes of people making less than $200,000/year (for families, less than $250,000/year), and thus forcing Obama to break a campaign promise (which he already had with the S-CHIP expansion). So it was a political consideration to call the mandate a penalty and not a tax, not legal considerations. The only ones calling the mandate a tax are the government's hypocritical lawyers in these cases, even though it's right there in the law that it's a penalty and not a tax.
If the mandate was such that it was a tax, it would then subject the mandate under the auspices of the Taxation Clause, not the Commerce Clause. That would have probably changed things dramatically in regards to Obamacare's Constitutionality. But that is not what is in the law.
It doesn't help to cite people who support Obamacare who also misrepresent what is said by those who oppose it. It may look like a trivial matter, tax versus mandate, but it matters legally and Constitutionally.
American health care is not the result of a free market. It is very heavily regulated and R&D is funded from government as well as private sources. Unless you are sanctioned by the state, you are forbidden to perform health care services, and as such, unable to secure them from non-sanctioned sources.
ReplyDeleteAlso, our services, while certainly the most expensive, are not the best. Medical tourism is on the rise to places like Cuba, Switzerland, Thailand, Mexico, Canada for both economic and health reasons.
@DPirate: I fail to see what that has to do with the mandate being unconstitutional. But thank you for admitting you have no real argument here.
ReplyDeleteAnd finally, Serwer is wrong about health insurance being unique. You can argue that under Serwer's logic -- "There are negative repercussions for all Americans if they do not buy insurance" -- for virtually any product.
Let's take firearms. If I buy a firearm, I can protect myself from a criminal trying to break into my home. If you don't buy a firearm as my neighbor, the criminal can break into your home, hurt or kill someone, and steal your belongings. That lowers the value of your home. That in turn lowers the value of my home as your neighbor. Therefore, we should all be made to purchase firearms and learn how to use them as a matter of general welfare.
What about a gallon of milk? It's healthy for you. But if enough people don't by milk, the dairy goes out of business. The price of milk goes up for everyone else as the remaining dairies have to ship milk further. Therefore it is in the general welfare to be forced to purchase a gallon of milk per week per household.
Both of those examples are just as ridiculous as being mandated to buy insurance.
There is no argument here.
"There is no argument here."
ReplyDeleteIsn't that the truth. Thread's full of folks convinced that Judge Hudson's ridiculously narrow interpretation of the Commerce Clause that basically rewrites United States Code makes him the only True Patriot on the bench, and come hell or high water Hudson's 100% correct and they'll ignore any argument you throw up there as "nuh-uh!"
Tell you what. You guys win the thread. Enjoy your no-prize of ignorance.
Two words.
ReplyDeleteFire insurance.
Why isn't that mandated for the greater good? Same argument, but nobody would accept that.
It would be patently unconstitutional.
I have yet to see a single, reasonable response to any of the questions I have posed or that of others in this thread, only bitter snark from somebody who can't argue his way out of a paper bag on his own blog.
How pathetic is that?
I don't think I've seen such a thorough fisking of a liberal since...oh...yesterday.
ReplyDeleteOh No!