Constitutional or Not, ObamaCare Has Got To Go

What happens if the Supreme Court upholds the heath care law?

Is not doing something the same as doing it, and should government be allowed to force you not to do the thing you're already not doing by making you do it so you don't not do it anymore?

That is just one of the perplexing legal questions the Supreme Court will likely find a way to say "yes" to in July after it wrestles with the constitutionality of ObamaCare.

Once the court upholds the individual mandate—a provision that allows politicians to coerce citizens to purchase products in private markets (or, in this case, state-backed monopolies)—we will have precedent that puts few limits on the reach of Washington and crony capitalism. And beyond policy, ObamaCare demonstrated why we should be cynical about government.

I suppose it starts with process. ObamaCare was shoved through the sludge of parliamentary trickery, lies, horse trading, cooked-up numbers, and false promises. Even after waiting to see what was in the bill, as Nancy Pelosi suggested, there was a historic electoral backlash. (Some people just don't know what's good for them.)

As for the court's decision, it probably won't imbue many people with any more confidence in process. Supreme Court Justice Elena Kagan—only recently charged with defending the administration's positions in federal courts as solicitor general, working there while the health care law was being written and picking the legal team to defend it—will be rendering her entirely untainted decision on the matter.

Nor, as we learned this week, is it reassuring to find out that while the House was debating passage of ObamaCare, Kagan and well-known legal scholar Laurence Tribe, then in the Justice Department, did a little dialoguing regarding the health care vote, and according to documents obtained by Media Research Center, Kagan wrote: "I hear they have the votes, Larry!! Simply amazing."

Nothing says impartiality like double exclamation points!!

Supreme Court judges are under no legal obligation to recuse themselves from any case, mind you, though the U.S. Code has some rubbish about a judge's disqualifying himself "in any proceeding in which his impartiality might reasonably be questioned," especially when the person in question has previously served as counsel or witness in the same case or has expressed an opinion about the outcome.

Why all the distrust and cynicism, you ask? We can trust judicious elected officials not to abuse legal precedent and pass legislation that micromanages the lives of citizens. They would never force Americans, for instance, to purchase broccoli (though when this was hypothetically suggested to then-nominee Kagan, she saw no legal hurdle) or decree exactly what sort of light bulbs a citizen can purchase.

The Supreme Court may find that the Commerce Clause has omnipotent powers because in the age of hyper-trade and globalism, everything touches everyone and everything is interconnected. Health care is a necessity. Like food. Energy. Housing. All of it up for grabs. The court may find that if an individual acts irresponsibly—or just acts in a way the majority deems unhelpful—he can be impelled by the state to partake in the plans of the many.

Judges can come to any decision they'd like, but ObamaCare is an affront to the spirit of the Constitution. People just need to be reminded.

Now, numerous news organizations have falsely reported that the Supreme Court agreed this week "to decide the fate" of Barack Obama's health care policy. Fortunately, the fate of ObamaCare can still be decided by voters and—more likely, in time—by its overwhelming fiscal and moral failure. The court does not historically like to strike down federal legislation. Those who oppose ObamaCare might hope for the best in July, but rather than stake their argument solely on the constitutionality question, they should be prepared to fight on grounds of bad policy and corrupt process. They have a strong case to make.

David Harsanyi is a columnist at The Blaze. Follow him on Twitter @davidharsanyi.

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  • MiNGe||

    Is not doing something the same as doing it, and should government be allowed to force you not to do the thing you're already not doing by making you do it so you don't not do it anymore?

    Yes, of course, since the commerce clause covers anything having even a remote effect on commerce at all, and includes the power to mandate things.

  • wareagle||

    "should government be allowed to force you..."
    ----------------------
    still trying to wrap my head around the inherent contradictions in this phrase.

  • Just a piece of paper||

    "Judges can come to any decision they'd like, but ObamaCare is an affront to the spirit of the Constitution. People just need to be reminded."

    The SPIRIT of the constitution? Don't you mean the GHOST?

    Look... after the literal inversion of the commerce clause, the creation and subsequent SCOTUS rubber-stamping of both state and federal ex post facto laws, the straight-up violation of almost the entire bill of rights (no quartering soldiers in your house... yet), the usurpation of article V powers by the judiciary... all of which have been done almost uniformly in ways that damage the citizen's welfare...

    The only reason that SCOTUS might *not* pass the health care initiative is because it DOES do some good.

    I'm on board for a lot of libertarian ideas, but transport infrastructure, education, healthcare... these are the very foundation of a country where people *can* make the best of their situation without having to interfere with each others rights and freedoms.

    SCOTUS will almost certainly pass this, and I doubt you can stuff this particular genie back in the bottle.

  • anon||

    What's a Heath care law? Something to do with candy?

  • Elena Kagan||

    Congress can make you buy those, too.

  • There is no "we"||

    Commerce-clause justifications get knocked down when they rely on "secondary effects" on interstate commerce (e.g., crime).

    Thus violence against women and guns near schools, having no DIRECT effect on interstate commerce (only a secondary impact at most) have not satisfied commerce-clause scrutiny.

    By contrast, commerce clause justifications NEVER get knocked down when they involve 'direct' or 'primary' effects on interstate commerce however small. Thus, the proverbial bale of hay or home-grown medical marijuana plant, miniscule as they are in the scheme of interstate commerce, are within the ambit of the commerce clause because they have a tiny-but-direct effect. (Wasn't always this way -- used to have to pass a constitutional amendment just to ban alcohol).

    The Supreme Court is going to have to do something "unprecedented" one way or another. It's going to have to take the "unprecedented" step of allowing purchase mandates in the commerce clause, or it's going to have to take the "unprecedented" step of saying that purchase mandates are unconstitutional, even if lack of purchase has a very substantial effect on interstate commerce, and even if the lack of purchase will utterly wreck a big primary legislative regime of control over a massive component of interstate commerce (viz., medical insurance).

    Which one of these two "unprecedented" paths the majority of the court will choose is open to conjecture, but, either way, new law will be made in bold, large strokes.

  • ||

    Whether or not I purchase health insurance has no bearing on the "market" that these assclowns say I will be participating in. You know, the Health Care market.

    Their whole argument is predicated on the idea that even if I don't buy insurance I'm still going to need health care. Having insurance doesn't guarantee that I will receive the care I need OR that I will seek out care. Not having insurance doesn't guarantee that I will not receive care.

  • There is no "we"||

    actually, it's an insurance market, not a care market

  • ||

    Yeah, and the insurance market means dick to whether or not I want or even get CARE. So again, forcing me to buy insurance doesn't mean I'm going to get, need, or want CARE. So why do you want to make me buy insurance?

  • There is no "we"||

    Your "point," such as it is, has nothing to do with the commerce clause.

  • wareagle||

    the point has everything to do with the common sense clause which says if govt can force you to buy one product, it can force you to buy any product.

  • There is no "we"||

    "common sense clause"?

    Nope.

  • KPres||

    Actually, it can force you to do anything, since everything is a "product". All you have to do is claim it's for sale and it's a product.

    Once the government can force you to do anything, then constitutional government is negated, which is a contradiction. Ergo, the constitution CAN'T grant the government the power force you to NOT buy and sell shit.

  • ||

    The point, dipshit, is that if they wanted to use the commerce clause then they should have mandated doctor's visits and preventative care, not the purchase of insurance that is completely unnecessary for one to receive services from a doctor

  • There is no "we"||

    does not follow

  • KPres||

    Yes it does.

  • There is no "we"||

    No, it does not.

  • KPres||

    You see I win when all you can do is drive the conversation into this "na-aww"/"uh-haw" bullshit.

  • There is no "we"||

    Technically, I think it's a stalemate.

  • ||

    stalemate = MOAR GOVT FTW!!1!1!!elevelty!

  • ||

    This is a good analysis, but I will quibble a bit by noting that regulations with indirect effects on interstate commerce do not always get knocked down. Under the Wickard line of cases, aggregate effects "overhanging" the market qualifies as affecting interstate commerce. The test is "substantial effects," not direct/indirect, which the court effectively overruled in Darby.

    The problem with Morrison and Lopez was that the regulated activity (crime, guns) had no relationship with commerce on its face. Here, there is no question that the regulated activity (insurance) is both economic and interstate.

    Look, I don't agree with it at all, but the Court's precedent shows that the commerce clause has been expanded beyond all recognition. Add in the N&P clause, and Congress can regulate what it will. The "activity/inactivity" distinction is neat, but semantic, and semantics don't win out over the Court's traditional deference to congress. A big push back would be nice, but it won't happen with this case - too political. Hell, the Court might even toss it out as not ripe, effectively allowing the DC Cir. decision to stand. Pass the buck and all that...

    The law is going to be upheld. The author of the article is right, though. The place to fight the health care bill is in congress.

  • ||

    Please explain to me how buying insurance, that I'm only allowed to buy in Texas, is "interstate". Also, please explain how not buying insurance is activity.

  • There is no "we"||

    Insurance companies do business in different states, albeit under state-by-state regulatory regimes and often under state-specific shell entitities.

    Where does the word "activity" appear in the commerce clause?

  • ||

    It of course does not. But the activity/inactivity distinction is the plaintiff's (states') claim. The 11th Circuit disccuses it (and notes the text of the clause makes no such distinction) on p.231 of its opinion. See http://aca-litigation.wikispac.....pinion.pdf

  • ||

    Buying insurance in Texas has a substantial effect on the interstate market because the company you buy it from is (likely) a national company, which sets rates and makes other economic decisions on an at least partly national scale. That states regulate the market has nothing to do with it - the test is whether a certain economic activity has a substantial effect on interstate commerce.

    Besides, your question is beside the point. No one (none of the plaintiffs or reviewing courts) has contended that purchasing insurance does not affect interstate commerce. The question is whether NOT purchasing insurance affects it.

  • ||

    Well the answer to that is simple. Not purchasing health insurance has no bearing on health care. Just like not purchasing car insurance doesn't magically make people not buy cars.

  • ||

    Also, if I buy everything locally from local small business who only do business in my state, how am I engaged in interstate commerce?

    I know the SC through Wickard says that even if I buy exclusively local products and services, it has an affect on the aggregate. That was a bullshit ruling too.

  • ||

    Well, we can certainly agree that Wickard was a shitty decision!

    My point was that the SC is going to uphold PPCA. I don't have to agree with it.

  • ||

    Ah, well then we agree on both points. Sorry if I was snappy.

  • ||

    Commerce is an activity.

  • There is no "we"||

    So how is adding to the 'activity' of commerce impermissible? Anybody who does one thing in commerce (e.g., drive trucks) can be obliged to do something else in commerce (e.g., purchase headlights).

    Why would some one who does nothing in commerce necessarily be in a different category? Why can you only add to commerce so long as you will not infringe any one single possible hypothetical individual's agenda of "non-participation" in commerce?

  • KPres||

    Keep torturing that logic.

  • There is no "we"||

    It's not a rhetorical question.

  • KPres||

    Where does the word "activity" appear in the commerce clause?

    It's in the definition of the word commerce. It means buy and selling services. It doesn't mean NOT buying and selling services, because then breathing would be commerce. And everything else. In fact, if commerce meant NOT "buying and selling" servcies as well as "buying and selling" services, then we can go ahead and get rid of all human language and replace it with one word: "Commerce"

  • ||

    Marklar.

  • KPres||

    Commerce.

  • DK||

    Why is everyone so convinced the law will be upheld? It seems pretty evident that Alito, Thomas, and Scalia will vote to strike it down (assuming they don't kick it down the road under the Anti-Injuction Act). Kennedy is, as usual, completely up in the air. Roberts will either vote to strike it down or write an opinion with some sort of compromise upholding the individual mandate but cautioning that the "inactivity" regulation applies only in this specific case. Breyer, Ginsburg, Sotomayor, and Kagan will undoubtedly vote to uphold it. But I don't see a 5-4 vote striking it down as out of the question.

    Don't forget that the Rehnquist/Roberts Courts have shown some willingness to pay deference to principles of federalism over deference to Congress. The sheer scope of the issues allotted time for argument suggests to me that the Court is seriously considering the limits of Commerce Clause jurisprudence. I'm hopeful that this means a push back could be upon us. Especially given the current political climate, the time seems right for a reversal of stupid decisions like Wickard v. Filburn.

  • mad libertarian guy||

    The problem however is that seeing some of this bad jurisprudence go down would necessarily involve a guy like Scalia to say that Raich was wrongly decided, and I don't think an avid drug warrior like Scalia is going to say just how wrong a 6 year old decision that is the love child of his imagination and Satan was.

    We're fucked.

  • DK||

    Don't forget that Scalia was not with the majority opinion in Raich; he wrote a concurring opinion. It seems to me that he was searching for a way to ground the legality of the drug war without invoking the Commerce Clause. He even mentions the Necessary and Proper Clause a few times. I'd hope he's willing to put real Constitutional issues before his bullshit drug war views. Maybe not.

  • ||

    When 26 states plus Virginia sue to stop the law, and the supreme court upholds it, I can see an Article 5 Convention down the road

  • DK||

    Last I checked, 26 of 50 states does not satisfy the 2/3 requirement to bring an amendment, nor the 3/4 ratification requirement. Only 13 states are need to keep your Amendment from coming to pass. Let's see if I can name some. CA, OR, WA, NY, NJ, MA, RI, CT, HI are all definite non-signators. That's 9. Shouldn't be too hard to find 4 other states which wouldn't ratify.

  • Mainer||

    IL and ME come to mind

  • Auric Demonocles||

    VT of course.

  • DK||

    So that's 11 states which will certainly never sign an amendment. I think we could find another 2 which would opt out. A Constitutional Amendment will never be the solution to Obamacare.

  • ||

    If you had enough support for a constitutional amendment/convention, you'd have enough support to overturn the law, which would be much easier/quicker.

    If the court upholds the law, that does not mean its constitutionally required, just that it is not constitutionally forbidden. Congress is free to scrap it.

  • d||

    Yes, but then we are at the mercy of another Dem-controlled Congress and White House in, oh say, another 12 years after the quasi-RINOs take them both back. An amendment would make it nearly impossible to expand the Commerce Clause any further.

  • Just a piece of paper||

    With the idiots (not talking about Paul... they'll never select him) the repubs are running, we're *definitely* about to have another four years of a dem president... and that means to overturn the law, you'd have to have congress build support to beat a veto. Not gonna happen. SCOTUS is the only chance to stop this for at least four years, and that means it's going into full effect. And that means a lot of people will have better access to healthcare, and that means you can't turn it around -- it'll be another 3rd rail issue like social security.

  • Just a piece of paper||

    With the idiots (not talking about Paul... they'll never select him) the repubs are running, we're *definitely* about to have another four years of a dem president... and that means to overturn the law, you'd have to have congress build support to beat a veto. Not gonna happen. SCOTUS is the only chance to stop this for at least four years, and that means it's going into full effect. And that means a lot of people will have better access to healthcare, and that means you can't turn it around -- it'll be another 3rd rail issue like social security.

  • Just a piece of paper||

    Sorry.... the commodore 64 Reason uses for its web server didn't respond for about a minute, and I clicked twice.

  • ||

    " it's going to have to take the "unprecedented" step of saying that purchase mandates are unconstitutional, even if lack of purchase has a very substantial effect on interstate commerce"

    But lack of purchase has NO effect on interstate commerce. It only has effect on public budgets at best. Unless they want to say that the lack of whale-oil purchases has an effect on interstate commerce.

  • anon||

    Considering insurance companies are only granted licenses to operate in certain states BY THOSE STATES, I don't see how interstate commerce clause can apply.

  • There is no "we"||

    the insurance companies are regional and national, even if their "shell" entities and their licenses are state-specific

  • d||

    Yes, but, in the eyes of the law, their "shell" entities are, by definition, all that exists.

  • There is no "we"||

    not in the eyes of the commerce clause. the cc is ultra-realist, and daisy-chains everything together,with little regard to form.

  • There is no "we"||

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  • There is no "we"||

    The timing of purchases has an effect on interstate commerce, and the timing of purchases has an effect on the larger legislative regime enacted by congress.

    Inactivity can have profound effects on interstate commerce, the commerce clause does not have any variation of the word "activity" anywhere in its text.

  • ||

    To regulate commerce, there has to be commerce actually taking place first. Hence some form of activity.

  • There is no "we"||

    There is some commerce, and the mandate is additive to that commerce.

    The mandate isn't creating a health insurance sector out of thin air.

  • KPres||

    No, it's creating the "Health Insurance For People Who Don't Want To Buy It" sector.

  • There is no "we"||

    Exactly. A feature, not a bug.

  • KPres||

    Yep, there you have it. It boils down to you wanting to control everybody else's life with no justification.

  • KPres||

    Yep, there you have it. It boils down to you wanting to control everybody else's life with no justification.

  • MRK||

    The good news is if Obamacare is found to be constitutional we won't need the fed to do any more bailouts. Instead it can be the "Every must buy a GM car" mandate.

  • ||

    In Soviet Russia GM buy you!

  • Tony||

    Why do libertarians support freeloading? Unless this becomes a society in which people's pockets are checked for insurance cards before they're given emergency medical treatment, I don't see how you can justify not having everyone covered. The Obama plan has a long conservative pedigree, and in the end is an incremental improvement on a crappy status quo. What exactly is the libertarian plan?

  • ||

    The plan is to not feed the troll.

  • ||

    He is fat so starving him will take some time.

  • ||

    Even the longest journey begins with a single step.

  • Tony||

    HAHAHA DISREGARD THAT I SUCK COCKS

  • Tony||

    I am not fat, cunt.

  • ||

    I've never really considered Tony a troll. A disingenuous hack for sure, but not a troll.

  • Mainer||

    "The plan is to not feed the troll."

    Finally, a leader with a plan that I can support.

  • There is no "we"||

    The plan ... is no plan.

    Everything takes care of itself. Automatically.
    Always.
    No exceptions.

    Do not question it!!!

    [BONUS: Reason dot com Glossary - "Troll" (noun) Individual posing argument or rhetorical question to which one does not have a rebuttal.]

  • ||

    Please don't feed this troll either. Make it like an anti-buffet.

  • ||

    Are you trying to be ironic? Because you just proved his point.

    I love this blog and the comments and all, but this guy is right. Yes, Tony is a fucking hack. But sometimes people make better arguments, too. And they always get shouted down as a "statist-fuck" or a troll, then everyone gives themselves a circle-jerk high five as to how enlightened they are.

    A reasoned debate would be nicer, IMHO.

  • ||

    Try answering the same questions from the same people in pursuit of the same useless bad faith argument for a few years and see how zen you are about it. "Tony" and whoever is now under the "We" handle know the answer to the questions they are asking. They are not here to argue, they are only here to get someone to engage them in a pointless conversation filled with irrelevancies, false equivalences, and outright bald-faced lies.

  • ||

    Well, you don't HAVE to answer them. I acknowledged that Tony and his ilk are hacks/fake contrarians/probably trolls. But when someone makes an opposing, non-disengenuous point, it would be nice to see an acknowledgement that people who disagree with the dominant viewpoint expressed here are not idiots or teh evil!!!!! statists. Otherwise you are repeating exactly what every Team Red and Blue echo chamber blog does.

    What happened to that city planner/democrat guy that used to post all the time? He didn't always get shouted down.

  • ||

    Signal to noise ratio. Which is what they are here for. They sucker enough people to their game, nothing else gets done as people walk away in disgust.

    Argue with them all you want. Feel free to spin your wheels forever for all I care. But they are just parasites here to feed off attention and that's why I politely ask people to not aid them in their sole goal of disruption.

    What happened to that city planner/democrat guy that used to post all the time?

    As soon as his beloved Obama began morphing into GWBII, he made a scene, called us all racists, and skipped-out so we couldn't call him out when all his predictions of Utopia turned out to be horseshit.

  • There is no "we"||

    "...nothing else gets done..."

    Oh, that is rich like chocolate mousse.

    Come on people, let's "get things done" around here as usual!

  • Tony||

    Um, you don't have a good answer to my question, which is the reason I keep asking it.

    I don't understand at all debating with only those who agree with you. It's a completely foreign mindset to me. You must be very insecure in your beliefs, or something like that.

  • KPres||

    End licensing restrictions for medical providers and cheap health care will be an available option for everybody. It'd probably suck like Cuba's, but you guys love Cuban healthcare, and these are freeloaders who chose to risk it anyway.

  • ||

    Insurance =/= Care

    For the record. My plan would be to stop the AMA cartels control over medical school. End or drastically reduce the licensing restrictions. Tort reform. Cash pay providers just like you do for any other service. And then adjust insurance to be geared more toward catastrophic insurance instead of having to cover every little doctors visit.

    This isn't rocket surgery.

  • Just a piece of paper||

    Actually, if you get the fucking lawyers AND insurance companies out of it, you wouldn't have to pay six figures for a few hours of someone's time and perhaps some plastic or stainless steel.

    We can't take any risks or responsibility, you know.

    BUT -- since it ISN'T going to change, we need universal coverage of some kind. This is a first step - not a great one, it's in many ways a free ride for the insurance companies, but at least some healthcare will come out of it, unlike the "no plan is the best plan" nonsense I hear around here.

  • anon||

    Even when someone answers you Tony, you just tuck your head in the sand until the next thread comes along. Everyone knows your bullshit gig is up.

  • There is no "we"||

    sugar-free is rebuttal-free...

    Come to think of it, you never actually post anything substantive of your own. You only show up to hurl downthread invective at Tony or other apostates.

    You're probably an intern at the magazine who does this between facebook posts.

  • KPres||

    He doesn't rebut because your ideas are so confused it would take too much effort to unwind all the misinformation.

  • There is no "we"||

    He punked out to Tony, not me.

  • KPres||

    Well, given the inane neurotic nonsense you were forced to retreat to with me, he comes out looking like the better man.

  • There is no "we"||

    Tony?

  • KPres||

    1. Not having insurance =/= freeloading. Only receiving services without paying = freeloading. If you never receive services, you're not freeloading. Most people who choose not to buy insurance are young and don't need it. Uninsured service only = 2% of overall costs.

    2. Since you're so concerned about freeloading, I'll trade you an individual mandate for an end to every other government social program. Then there'll be no more freeloading.

  • Tony||

    Most people who choose not to buy insurance are young and don't need it.

    Which is exactly why it costs so much for those who do. And usually we're talking about a status quo in which the elderly are already receiving universal coverage. The problem would be much, much worse without Medicare and Medicaid, since most people in those programs would be uninsurable in the private market.

    There is no alternative in the modern world to universal health coverage of some kind. You might as well just deal with it.

  • There is no "we"||

    Tony, I think Lindsay Lohan is going to sober up before anybody on this board learn to "deal with" the realities of governing in a nation of 310M+ people.

  • ||

    You must be lost. This is a libertarian blog where most people who comment think there should be as little controlling, sorry "governing", of people as possible.

  • There is no "we"||

    "possible" being the operative term

  • ||

    So you are admitting that it's not possible for people like you to NOT interfere in other people's lives?

  • Tony||

    With respect to healthcare, it's not possible for anyone with possession of a body not to interfere with others' lives.

  • Tony||

    HAHAHA DISREGARD THAT I SUCK COCKS

  • KPres||

    "Which is exactly why it costs so much for those who do."

    No, you idiot. It costs more for people who use the service because THEY'RE USING THE SERVICE. Forcing people who probably WON'T use the service to buy it means you're subsidizing FREELOADERS. I thought you didn't want that? Now you do? Make up you fucking mind.

    "The problem would be much, much worse without Medicare and Medicaid, since most people in those programs would be uninsurable in the private market."

    No they wouldn't, you idiot. They'd buy term insurance when they were younger.

    What medicare does is drive up the costs for everybody else by underpaying for old people, which isn't really underpaying, though, given that costs are overvalued thanks to regulations and licensing.

    Basically, mostly government-managed health care economy that's fucked up like every thing else that's mostly government managed.

  • There is no "we"||

    If you stay out while you're young and healthy, then jump in when you're old and sick, you are a freeloader.

  • KPres||

    Not if insurance companies are freely allowed to screen applicants. Then the cost gets priced in.

  • There is no "we"||

    It still sticks the taxpayer, or other creditors.

  • KPres||

    No it doesn't.

  • There is no "we"||

    see train derailment example and related discussion below...

  • There is no "we"||

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  • KPres||

    "There is no alternative in the modern world to universal health coverage of some kind. You might as well just deal with it."

    Almost nobody has "Universal coverage". Most European countries are at around 95%. The US is 85%. A free market without massive government interventions driving up the cost would close that gap easily. And provide better quality.

  • There is no "we"||

    This is a useless comparison.

    Individual American states side-by-side with individual European countries would be an informative comparision.

  • KPres||

    Not when the topic is national legislation.

  • There is no "we"||

    You're talking about the status quo ante, not the future under ObamaCare. Once we have the coverage stats under ObamaCare, a useful comparison nation-to-nation might be made.

  • There is no "we"||

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  • Tony||

    Your two assumptions (government drives up costs and a free market would provide better quality) are not borne out by the facts. The US has the most free market system in the civilized world and it's also about twice as expensive as the socialistic alternatives. Healthcare is not an industry that responds to standard free market incentives since it provides a product nobody actually wants but everyone needs.

  • KPres||

    The socialist Europe is cheaper because they set price controls, which drives out innovation, but that's OK because they can FREELOAD (there's that word you hate again) off the US.

    Also, most of the difference between what they pay and what we pay (relative to GDP) comes from what we spend on the elderly. They limit what services they're given, especially the ones with low marginal benefit.

    But we can't even do that because the crybaby left screams bloody murder about old people dying in the streets or some bullshit.

    "Healthcare is not an industry that responds to standard free market incentives since it provides a product nobody actually wants but everyone needs."

    Tony that's the dumbest thing I've ever heard. I don't "want" to eat except for the fact that my stomach hurts if I don't. I don't "want" a car except for the fact that I can't get around without one. I don't "want" a cellphone except for the fact I get lonely when I don't talk to friends and family.

    Are you serious with that bullshit?

  • Edwin||

    no it's not, America's is the least free market

    It's the least free market because it mandates that doctors and hospitals take payments of a certain amount below cost, dooming them to losing money, if it were not for the fact that they keep raising the amounts the government is willing to give. It's basically programmed to raise prices.

    Even Europe's government-run healthcare systems are more free-market than our fucked mixed system.

    And like I said before, France's especially is more free market, which is why it works better (though sustainability is also an issue for them). Patients are simply reimbursed for some portion of their costs after treatment.

  • Mainer||

    A proud people who founded a country based on individual liberty, have become a herd of craven sheep, bleating that we must cede control of our personal decisions to the government.

    Is this the end of the American experiment, or will it ignite those among us who still believe in liberty ?

  • cynical||

    The Interstate Commerce or absence of commerce Clause has to go.

  • duke||

    I agree with Tony. I hate freeloading too. I pay a ton in self-employment taxes, Medicare and Medicaid taxes and pay cash for every single doctor visit I go to. I don't have insurance because my relatively good health does not require it and because it is very expensive. I also have never once used a "free" healthcare service since my age and income precludes me from that benefit.

    So as I understand Tony's argument, we should end all governmental involvement in healthcare so we can eliminate the free-rider problem and properly incentivize people to take better care of their bodies. Plus, crony capitalism and Medicare and Medicaid fraud will be eliminated entirely too. An added bonus.

    ObamaCare was ramrodded through Congress by the insurance companies (evil corporations according to OWS) because under the new law everyone must buy their product. Doctors hate it. Hospitals hate it. Lack of insurance is not what drives up the cost of health care. Entrepreneurs, such as Medicare and Medicaid management companies, add extra, unneeded layers of management to the delivery of care and substantially increase cost. For the health care dollar to reach the patient, it must first be syphoned off a little at a time as it passes through layer upon layer of management companies who add nothing to the continuum of care. HMOs are a prime example of where the waste lies. But I practice Medicare law and my dad was a hospital administrator for 20 years, so what do I know...

    Sooner or later, the multitudinous contradictory positions taken by the busy bodies who love government solutions catch up with you.

  • There is no "we"||

    " we should end all governmental
    involvement in healthcare "

    Impossible for reasons already explained by Tony.

    The government can't sift through wounded people's wallets and purses at the site of a train derailment, trying to figure out who will get emergency medical assistance and who will be left to bleed out. The "free riders" lie among the paid-up in the bloody smoking wreckage of plane crashes, earthquakes, terrorist attacks, mass shootings, highway pile-ups, and flash floods. There is no way that a goverment, as such, can be 'uninvolved' in the provision of medical care.

  • DK||

    Interesting comments, especially given that insurance policies usually specifically exclude coverage for acts of God (earthquakes, flash floods, etc) or acts of war (terrorist attacks and arguably mass shootings).

  • There is no "we"||

    (N.B.: Health insurance does not exclude coverage for acts of God.)

  • DK||

    Interesting. My Blue Cross health insurance policy certainly does. I must be getting fucked by those evil corporate stooges.

  • There is no "we"||

    So if you get injured in a mass shooting, Blue Cross won't pay your medical bills?

  • ||

    Mass shootings are Acts of God now? Holy shitballs.

  • There is no "we"||

    Whatever. Lightning strike. Earthquake. What causes of injury, characterized as "acts of god," does the medical policy not cover?

  • DK||

    Was wrong. Misinterpreted a "not specifically listed" clause. Good opportunity to re-read that contract. Apparently I'm insured for gender reassignment surgery.

  • There is no "we"||

    *sigh*

  • There is no "we"||

    HAHAHA DISREGARD THAT I SUCK COCKS

  • WTF||

    The "free riders" lie among the paid-up in the bloody smoking wreckage of plane crashes, earthquakes, terrorist attacks, mass shootings, highway pile-ups, and flash floods.

    So just treat everyone, and those that have insurance against such things will have it covered by their insurer, and those that do not have incurred a debt that they are now obligated to pay off like any other. It's not that complicated.

  • DK||

    And of course concerned private citizens and charities would not step in to help. People can't help others without government coercion, after all.

  • WTF||

    Of course, because in statist world, if the government doesn't do it, it won't get done.

  • There is no "we"||

    Maybe it will get done. Maybe it won't. Charity volunteers are not accountable to anyone.

    The public invests government with certain powers and responsibilities when it wants greater assurance that a certain thing will get done.

  • KPres||

    "The public invests government with certain powers and responsibilities when it wants greater assurance that a certain thing will get done."

    Could you please be more vague? "The public"..."certain powers"..."certain things will get done"....

    Um, duh?

    A shorter version of that is "whoever wins wins."

  • DK||

    Are you kidding me? Look at the response of private groups to disasters like Fukushima and Haiti. Now take a look at FEMA's response to Katrina. Accountability?

  • KPres||

    Top men?

  • There is no "we"||

    The specific pathologies of the Bush presidency are not necessarily attributable to all of government as such.

  • There is no "we"||

    HAHAHA DISREGARD THAT I SUCK COCKS

  • There is no "we"||

    HAHAHA DISREGARD THAT I SUCK COCKS

  • There is no "we"||

    A volunteer rabble might do anything pro bono, from investigating homicides to repelling a foreign invasion to building a ten-lane highway.

    But such fanciful possibilities do not militate against the existence and actions of our government, or circumscribe its responsibilities.

  • KPres||

    Those are public goods. Health care services are not.

  • There is no "we"||

    "Public goods" is a meaningless category. War can be fought by soldiers or mercs. School can be tax-payer funded or run by churches. Roads can be built by the state or by toll-funded corporations.

    The allocation of responsibilities between public and private sectors is subject to endless revision, and denominating some favored enterprise as a "public good" while excluding some disfavored enterprise from the same category adds exactly nothing to the debate.

    I have no specific stake in whether OJ Simpson gets brought to justice for killing his ex-wife. I have a much more direct interest in the effective treatment of tuberculosis patients across the country, nay, the world. What is a "public good" relative to me or to anyone else is a subjective judgment call.

  • anon||

    Oh the irony. See previous vague statement by "we" above.

  • There is no "we"||

    HAHAHA DISREGARD THAT I SUCK COCKS

  • ||

    But that's HAAARRRDDDD!!11!1!1!!!

  • There is no "we"||

    Mm. Putting the ones in with the exclamation points really delivers the 'zing.' The height of wit. The height of comedic art.

  • There is no "we"||

    HAHAHA DISREGARD THAT I SUCK COCKS

  • There is no "we"||

    The government is not obliged to soak up losses inflicted by deadbeats who are stupid enough to get in the way of perfectly innocent bullets or runaway trains or car-bomb shrapnel and then can't cover the medical debts they incur. Nothing requires the taxpayer to be the creditor of last resort for such people.

  • T||

    Nothing requires the taxpayer to be the creditor of last resort for such people.

    First true statement you've made. If they can't pay, they declare bankruptcy and move on. Why complicate it more than that?

  • There is no "we"||

    Bankruptcy sticks the taxpayer with the bill. The taxpayer does not have to get stuck. The taxpayer does not have to go unpaid, or wait to be paid post hoc, or take his chances on not getting paid after the fact. The taxpayer can demand payment up front. The taxpayer can demand that everybody chip in now, before the need arises.

  • T||

    So the taxpayers can pick their own pockets up front for variable costs to be incurred later and pay for a bureaucracy to administer the funds gathered from said pickpocketing. Smart thinking.

    This also assumes the taxpayer would be paying for that cost anyway, which is only the case if the taxpayer is paying for the services in the first place. Your argument is amazingly circular.

  • There is no "we"||

    Yes. The taxpayer is paying for the services in the first place. It is responding to the scene where people have been injured. Are you even following this thread? Can you even recall a post from earlier in the afternoon?

  • ||

    Bankruptcy sticks the taxpayer with the bill.

    I apologize. I didn't realize we were debating in make believe world where the government (using taxpayers money) pays for everything and there are no charity or for-profit hospitals or doctors.

  • There is no "we"||

    The taxpayer is not obligated to stick charities or non-profits, either. It can demand up-front payment for their sake, as well.

  • ||

    The only reason a taxpayer would get stuck holding the bill by someone declaring bankruptcy and a for profit hospital not getting paid is if the government gave the hospital a bailout. I guess you haven't been around long enough to realize that we are against bailouts too.

  • KPres||

    "Bankruptcy sticks the taxpayer with the bill."

    Are you retarded? Taxpayers don't lose in bankruptcy. Creditors do.

  • There is no "we"||

    Insolvency sticks taxpayers with an unpaid debt, discharge or no. And taxpayers don't have to abide freeloaders sticking it to creditors, either. Irresponsibly shirking one's insurance obligations, then paying the government while sticking it to your private creditors is not a use of the bankruptcy system that the taxpayer has to accept.

  • KPres||

    "Insolvency sticks taxpayers with an unpaid debt, discharge or no."

    No it doesn't.

    "And taxpayers don't have to abide freeloaders sticking it to creditors, either."

    That's between the creditor and the freeloader, either of whom can opt out.

    "Irresponsibly shirking one's insurance obligations"

    There is no insurance obligation. There's only an obligation to pay for actual services rendered.

    "then paying the government while sticking it to your private creditors is not a use of the bankruptcy system that the taxpayer has to accept."

    Yep. So let's tighten bankruptcy laws.

  • There is no "we"||

    No, we don't have to tighten bankruptcy laws. We can do ObamaCare instead. Nothing privileges your solution over the solution chosen by Congress.

  • KPres||

    No, we don't have to tighten bankruptcy laws. We can do ObamaCare instead.

    No, we don't have to do Obamacare. We can tighten bankruptcy laws instead.

    Nothing privileges your solution over the solution chosen by Congress.

    Nothing privileges the solution chosen by congress over my solution.

    See how fun that was?

    (Actually, my solution offers more direct accountability and individual discretion, so yes, it is privileged.)

  • There is no "we"||

    I don't see "KPres" anywhere in Article I.

  • There is no "we"||

    HAHAHA DISREGARD THAT I SUCK COCKS

  • KPres||

    Injuries are only a fraction of the expense. That would easily be covered by charity.

  • There is no "we"||

    We know it's true because KPres says it is so.

    Do not question it!!!

  • KPres||

    Oh, I get it. You want a cite? Even though you've provided none for any of your claims?

    Google it yourself.

  • There is no "we"||

    Google whether charity will cover the cost of treating people who have been injured in the future?

    I don't think the search engine has a time-warp function yet.

  • KPres||

    No, google the % of medical costs related to traumatic injury so you can understand that this is a small fraction of the issue. THEN we can decide how likely charity is to cover it.

  • There is no "we"||

    not likely enough

  • KPres||

    More than likely enough. Especially once you lighten medical regulations and licensing requirements and cheap care becomes plentiful.

  • There is no "we"||

    not ready to take your word for it;

    there isn't one problem in the history of this country that "charity" ever handled all by itself successfully

  • There is no "we"||

    HAHAHA DISREGARD THAT I SUCK COCKS

  • duke||

    So buying insurance from a private, for-profit company will reduce costs for everyone how? Because the benevolent, private, for-profit insurance companies will take their surpluses and profits and redistribute them to those who need health care the most? To those who cannot afford the more expensive services? They will redistribute that wealth in a way that you, the great enlightened liberal approve of?

    Has anyone who supports ObamaCare actually dealt with an insurer before? I can't even process these argument they're so retarded.

  • There is no "we"||

    Not our fault the public option was left out. Go cry on somebody else's shoulder.

  • Tony||

    Yeah Obamacare is the Republican plan from the 90s and it should be considered as such when it fails to make much meaningful change, at which point we can try single-payer.

  • KPres||

    Yep. It was a half-hearted statist solution and that's why it will fail and that should be remembered, at which point we can try a free market.

  • There is no "we"||

    Yes, I'm sure we'll try that.

  • duke||

    So, to a liberal, any state-run option is better than a privately run option, even if the private option is manifestly better than the state option? I guess that's provided that the state option is run by Democrats.

    This is why I cannot accept that liberals are the more intellectual of the two parties.

  • ||

    To summarize this thread (and likely all future threads) on the Constitutionality of ObamaCare:

    (1) It cannot be defended under the language of the Commerce Clause.

    (2) It is almost certainly Constitutional under post-Wickard SCOTUS doctrine.

    (3) If it is struck down, it will be under a squishy, unstable, and ultimately useless decision based on the activity/inactivity distinction.

  • There is no "we"||

    +1

  • There is no "we"||

    HAHAHA DISREGARD THAT I SUCK COCKS

  • ||

    Damn good summary. +2

  • ||

    I've always wondered if they really wanted to pass Obamacare in the first place. It looked to me like a parliamentary scam where all the congressmen could say the "voted for obamacare" on one procedural vote or another but "gosh darnit' them dang repubs just wouldn't let it happen!"

    It would be a lot easier - if they really wanted a government solution to health care for low-income people - if they just rolled the existing bureaucracies into one big one.

    As has been said, insurance doesn't equal care. It's a service designed to protect someone against emergencies and not a payment system. Period.

  • Jebus||

    Let's see, the Commerce Clause purpose was to prevent states from putting up tariffs against other states not the meaning that "there is no we" believe it to be. Just because Willard vs Filburn was ruled incredibly incorrectly doesn't change the original intention of what the Commerce Clause is.

  • Satan||

    The almighty welfare states
    of Canada/US/Europe will
    never allow its "infirmary
    sector" to die in the streets...

    Since the morally corrupt welfare
    state cannot take care of its
    own, the government will have
    to pick up the tab...

    Please allow me to introduce
    myself..

    You are fucking fools, and
    blind men...

    Signed,

    Satan, Inc.

  • Freddie||

    Libertarians, conservatives and other free marketeers would have a better case against Obamacare if they could present a coherent market oriented alternative.

    What's that? Ok, glad to oblige.
    Three step plan:

    1. Reverse the tax incentives. Enployer health plans are taxable income, while indivual health spending insurance premiums are tax deductible. Freed of the illusion of "free" care from employers, we'd shop around for our own insurance, make are our own judgements in levels of coverage vs. premiums vs. deductibles, all without danger of losing coverage if we lose our jobs.
    2. Insurance conpanies would be required to cover not pre-existing conditions, but "post-existing" conditions - that is, even after coverage has expired, the insurer is on the hook for any illness which originated while the policy was in force.
    3. Sliding scale assistance for low income and/or high risk patients to purchase private health insurance.

  • Coeus||

    Nice. I hadn't heard #2 before.

  • anon||

    Libertarians, conservatives and other free marketeers would have a better case against Obamacare if they could present a coherent market oriented alternative.

    The two things do not go together. It's precisely because a market is free that it works; you cannot start tinkering with it and have the expected result without unintended consequences.

    If you really want to fix Healthcare, make the law that both parties have to abide by the contract signed. Then let everyone else decide what they want to pay for, and what they want to sell it for.

  • Freddie||

    Anon- What needs to be emphasized is that the pre-Obamacare status quo was definitely NOT a free market. Employer based health care began as a way around WWII wage controls and continued due to tax preferences. The employer health plan is in many ways a private version of a government system which offers the illusion of "free" or low cost health care in exchange for limited choices and centralized micromanagement of health care decisions.

    The lack of of a free market in health care is at the root of most of the concerns about health care access and affordability. Health care is one of those issues where free market folks have fallen into the trap of defending a status quo that is not theirs to defend.

  • Lindsey||

    I think the obama's heath care law is not successfull.

  • ||

    I love the correlation of if we pass this then next week the Gov'mint will be making us buy all sorts of stuff. I guess people are marrying rocks and animals and if you go back far enough mixing the races should have destoyed our country by now. Please stop with all these fake BS arguments.

  • Coeus||

    Name one area where slippery slope was predicted of the government and didn't happen withing 10 years.

  • steme||

    jeez, this is why i dropped "Reason" after 2 months of subscription. pure propaganda and hyper-partisan BS. i wished this magazine actually lived up to its name and not be a total tool of the political process.

  • دردشة العراق||

    Thank you

  • دردشة العراق||

    Thank you

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