Mandatory Health Care

[luke warm]

interesting posts...but :rolleyes:

 

BACK to OP

 

 

Do you think it is constitutional to force everyone to buy Health Insurance and if so by what legal logic?

no, but the constitution is a pesky document at best

[DrTodd13]

Let's go back to basics here. There are two (non-violent) ways to apportion scare resources: pricing and rationing.

I don't think you are right here. There's only one non-violent way to apportion scarce resources and that is pricing. There is no way to prevent a rationing situation from transitioning to pricing without the threat of violence. The sellers certainly don't have much if any reason to prefer rationing to pricing.

[hrothgar]

Let's go back to basics here. There are two (non-violent) ways to apportion scare resources: pricing and rationing.

I don't think you are right here. There's only one non-violent way to apportion scarce resources and that is pricing. There is no way to prevent a rationing situation from transitioning to pricing without the threat of violence. The sellers certainly don't have much if any reason to prefer rationing to pricing.

I remember hearing how many people got shot back during the rationing riots during the World War II....

[Winstonm]

Political power corrupts more severely than money,

 

Don't you realize that political power IS money?

 

It is the socialists who fail to account for human nature as has been tragically seen all around the world.

 

I agree that socialists also fail miserably - but it has nothing to do with politics or the ideology of socialists and/or capitalists. It has only to do with basic human nature. The proof has been around as long as our ancestors the monkeys climbed in trees, and it has been proven ever since civilization tried its hand at governance.

 

Give a monkey a toy and then try to take it back - it is a great way to lose a hand; give a government power and then try to take it back - same result.

[mike777]

By Shirley S. Wang

A requirement that all Americans buy insurance is common to all of the major health-overhaul bills — but it’s not constitutional, write two lawyers in an op-ed in the WSJ.

 

Those who don’t buy insurance would be required to pay a penalty, according to the various health proposals. But this mandate isn’t so much a regulation as a “tax,” and Congress shouldn’t be allowed to tax people just because they are uninsured, argue David Rivkin and Lee Casey, who served in the Justice Department during two Republican administrations. Otherwise, Congress could institute similar “taxes” on anyone who doesn’t follow other orders, such as joining a health club or exercising regularly, they point out.

 

“This type of congressional trickery is bad for our democracy and has implications far beyond the health-care debate,” they write, noting that the division of power among the three branches of government are “the most reliable means of protecting individual liberty—more important even than the Bill of Rights.”

 

 

"A tax that is so clearly a penalty for failing to comply with requirements otherwise beyond Congress’s constitutional power will present the question whether there are any limits on Congress’s power to regulate individual Americans,” write Rivkin and Casey."

 

 

http://blogs.wsj.com/health/2009/09/18/man...ax-lawyers-say/

[barmar]

Some states, such as Massachusetts, have mandatory health insurance. Have any of them been challenged in court yet?

[Winstonm]

By Shirley S. Wang

A requirement that all Americans buy insurance is common to all of the major health-overhaul bills — but it’s not constitutional, write two lawyers in an op-ed in the WSJ.

 

Those who don’t buy insurance would be required to pay a penalty, according to the various health proposals. But this mandate isn’t so much a regulation as a “tax,” and Congress shouldn’t be allowed to tax people just because they are uninsured, argue David Rivkin and Lee Casey, who served in the Justice Department during two Republican administrations. Otherwise, Congress could institute similar “taxes” on anyone who doesn’t follow other orders, such as joining a health club or exercising regularly, they point out.

 

“This type of congressional trickery is bad for our democracy and has implications far beyond the health-care debate,” they write, noting that the division of power among the three branches of government are “the most reliable means of protecting individual liberty—more important even than the Bill of Rights.”

 

 

"A tax that is so clearly a penalty for failing to comply with requirements otherwise beyond Congress’s constitutional power will present the question whether there are any limits on Congress’s power to regulate individual Americans,” write Rivkin and Casey."

 

 

http://blogs.wsj.com/health/2009/09/18/man...ax-lawyers-say/

I don't want to get into a big debate about the quality of quotations, as we all tend to find something of interest and use those quotes. However, I will point out two oddities about this WSJ Op-Ed quote: first, the WSJ Op-Ed may as well be bylined as by Rupert Murdoch, and secondly I happen to agree with this conclusion that mandatory health insurance is outside the scope of Constitutional powers granted to governments, either federal or state. It is a power reserved "for the people".

 

Having said that, I also find that using the argument of an unconstitutional law made by the same people who support things like domestic spying, rendition, and no penalty for executive wrongdoing to be a complete mockery - it is more Alice in Wonderland exception that the constitution is only valid when I want it to be valid and not at any other time.

 

And it also shows that there is only one legal recourse and that is universal coverage provided to all by the government.

[luke warm]

Some states, such as Massachusetts, have mandatory health insurance. Have any of them been challenged in court yet?

i'm not sure a state law mandating health insurance is the same as a federal law, iow i doubt the state law is unconstitutional

[blackshoe]

Hm. I'm no Constitutional Law expert, but it seems to me that "powers" fall into three categories: those delegated to the Federal Government, those delegated to the States, and those not delegated at all. If a power has been delegated to the Feds, then it is not a power available to the States. Equally, if a power has not been delegated, it's not available to the States. So if the power to mandate buying health insurance has been delegated specifically to one or more states (either in the US Constitution or in the state's constitution) then that is a power the states have, and not unconstitutional. It would be unconstitutional for the federal government to exercise this power if it has not been delegated to that government in the US Constitution. It would unconstitutional for a State to exercise this power if it has not been delegated to that State in its own Constitution, or to the States generally in the US Constitution. It would also be unconstitutional for a State to exercise the power if it has been delegated to the Federal Government. Or so it seems to me.

[Winstonm]

Some states, such as Massachusetts, have mandatory health insurance.  Have any of them been challenged in court yet?

i'm not sure a state law mandating health insurance is the same as a federal law, iow i doubt the state law is unconstitutional

It would also require what "mandatory" means. Whether it is mandatory to offer it, purchase it, or to provide it would make considerable difference to the lawfulness I should think.

[barmar]

From http://www.mass.gov/?pageID=cagoterminal&L...rance&csid=Cago

What is the Individual Mandate?

The individual mandate is a requirement that all Massachusetts residents over the age of 18, for whom available health insurance is affordable, obtain and maintain health insurance that meets minimum coverage requirements beginning July 1, 2007.

 

Individuals who cannot show proof of health insurance coverage by Dec. 31, 2007, will lose their personal income tax exemption when filing their 2007 income taxes.   The 2006 personal exemption is $3,850 for an individual, which translates into a tax savings of approximately $204 for an individual (5.3 percent of $3,850).

 

Failure to meet the requirement in 2008 will result in a fine for each month the individual does not have coverage. The fine will equal 50 percent of the least costly, available insurance premium that meets the standard for creditable coverage.

I guess that qualifier "for whom available health insurance is affordable", provides an exception for indigent people who can barely afford to feed their families, and health insurance would be a luxury.

[Winstonm]

So the MA government determines what someone can afford?

[barmar]

So the MA government determines what someone can afford?

Yes. From http://www.mass.gov/legis/summary.pdf

Individuals for whom there are not affordable  products available will not be penalized for not having insurance coverage. A sliding “affordability scale” will be set annually by the Board of the Connector.

Also, there's a state-subsidized medical insurance program, available to people earning less than 3x the Federal Poverty Level who aren't eligible for other public insurance. The premiums are on a ssliding scale, and drop to zero when you reach the FPL. So it's not clear to me who the exception actually applies to -- if the subsidy doesn't make the insurance affordable, what's the point?

 

In any case, this seems like a model for the type of program Obama has been pushing for: a public option along with private insurance, with assistance for poor people.

[PassedOut]

An interesting piece yesterday by Timothy Egan highlights a source of immense waste in the US healthcare system today: The Way We Die Now

 

John Kitzhaber, M.D., the governor of Oregon, had to deal the present system when his mother became fatally ill.

 

With his mother’s death in 2005, Kitzhaber lived the absurdities of the present system. Medicare would pay hundreds of thousands of dollars for endless hospital procedures and tests but would not pay $18 an hour for a non-hospice care giver to come into Annabel’s home and help her through her final days.

 

“The fundamental problem is that one percent of the population accounts for 35 percent of health care spending,” he said. “So the big question is not how we pay for health care, but what are we buying.”

 

He is not, he says, in favor of pulling the plug on granny. The culture of life should be paramount, he says, following the oath he took as a doctor. But Oregon, years ahead of the rest of the country, has talked and talked and talked about this taboo topic, and they’ve voted on it as well, in several forms. They found — in line with national studies — that most people want to die at home.

I have no problem with people who fear death to the extent that they want to live a few extra days in a hospital surrounded by tubes and monitors. I just think that they should buy private insurance policies for that specific purpose.

 

About $67 billion — nearly a third of the money spent by Medicare — goes to patients in the last two years of life. The need to spend less money at the end of life “is the elephant in the room,” Evan Thomas wrote in “The Case for Killing Granny,” the cover story in last week’s Newsweek. “Everyone sees it but no one wants to talk about it.”

 

John Kitzhaber, M.D., politician, and son who watched both parents die in a dignified way, cannot stop talking about it. His parents’ generation won the war, built the interstate highway system, cured polio, eradicated smallpox and created the two greatest social programs of the 20th century — Social Security and Medicare.

 

Now the baton has been passed to the Baby Boomers. But the hour is late, Kitzhaber says, with no answer to a pressing generational question: “What is our legacy?”

Let's hope congress takes some big steps to turn this around, despite the foolish whining about "death panels."

[kenberg]

The following interested me.

 

http://www.washingtonpost.com/wp-dyn/conte...9092204289.html

 

The headline, "For French, U.S. Health Debate Hard To Imagine", is the least interesting part. Here are some parts I found interesting.

 

France's modern health-care system dates from a decision by Charles de Gaulle in the heady days just after World War II. In the interests of political unity, de Gaulle and his nationalist followers embraced a demand for worker protections that arose chiefly from communists and socialists who had been key in the Resistance movement.

 

When I think of De Gaulle I think of withdrawal from NATO, an independent nuclear deterrent and most of all the withdrawl of France from Algeria. Of course there is Paris in 1944, but I was 5. I had no idea of his role in health care. The guy got around.

 

 

Without abandoning the bedrock of health care for all, therefore, the French system has begun to evolve toward something resembling Medicare, the health insurance for

and older people in the United States, except that it covers people of all ages. The shift is regarded as inevitable, specialists said, but increasingly it is raising the delicate question of how much the government will be forced to resort to even higher co-payments in the years ahead.

 

 

and

 

 

Although supervised by the government, the French system has remained different from government-run health care, such as that offered by Britain. French people, for instance, choose their own doctor, who in most cases is a private practitioner. "Contrary to what you might believe, it is not a very nationalized system," Pignarre said. "The English have gone much farther in that direction than we have."

 

 

What I get out of this is that the French system is closer to what we are considering than either the British system or the Canadian system is. Further, the French are having at least some difficulty with the finances of it. So here, I think, is sort of where we are: We are thinking along the lines of French system. We cannot admit this because for reasons I do not much understand we are pissed at the French. People are criticizing reform by citing supposed difficulties in the British and Canadian systems, which we are not really modeling our proposals on. The French, and probably everyone else, are running into difficulties arising from the fact that we can now do far more technologically than any country can afford. We cannot seriously address this because (a.) it involves the French and (b.) no one will admit that it is not possible to do everything for everyone.