ObamaCare on Trial

The libertarian legal movement threatens Barack Obama’s signature law.

(Page 4 of 4)

But when oral arguments began, Roberts wasted no time tearing apart Verrilli’s case, which rested on the idea that because we all will require health care at some point, the government may stipulate how we pay for it in order to prevent the uninsured from imposing a burden on others. “Once we say that there is a market and Congress can require people to participate in it, as some would say, or as you would say,” Roberts told the solicitor general, “it seems to me that we can’t say there are limitations on what Congress can do under its commerce power.” In fact, Roberts continued, “given the significant deference that we accord to Congress in this area, all bets are off.”

Justice Antonin Scalia soon amplified Roberts’ misgivings. “Why do you define the market that broadly?” he asked the solicitor general. “Everybody has to buy food sooner or later,” Scalia continued, “so you define the market as food. Therefore everybody is in the market; therefore you can make people buy broccoli.”

So much for a limiting principle. Nor did liberal Justice Stephen Breyer do the government’s case any favors when he chimed in to say that “yes, of course” Congress can “create commerce where previously none existed,” which could include forcing all Americans “to buy cellphones” to facilitate the provision of emergency services (a hypothetical posed by Roberts). Verrilli hastened to clarify that the government was not in fact endorsing a cellphone mandate, but the damage had been done.

To make matters worse, after Verrilli suggested that a ruling against the individual mandate would be tantamount to judicial activism, Roberts shot forward in his chair to accuse the government of demanding that the Court engage in activism by deciding that a health insurance mandate is acceptable but that a broccoli or cellphone mandate is not. “It would be going back to Lochner if we were put in the position of saying, no, you can use your commerce power to regulate insurance, but you can’t use your commerce power to regulate this market in other ways,” Roberts declared. “I think that would be a very significant intrusion by the Court into Congress’ power.”

Lochner v. New York was a 1905 case in which the Supreme Court struck down a state limit on bakers’ hours, saying it violated the liberty of contract protected by the 14th Amendment. Today Lochner serves as a sort of bogeyman to most liberal legal thinkers, who see it as a notorious example of conservative judicial activism. But many conservative legal thinkers also dislike Lochner, including Roberts. During his Senate confirmation hearings, the future chief justice said, “You go to a case like the Lochner case, you can read that opinion today, and it’s quite clear that they’re not interpreting the law; they’re making the law.” So when Roberts told Verrilli that the government’s theory of the Commerce Clause risks unleashing Lochner-style activism, he was raising a powerful conservative objection, one that would allow him to strike down the individual mandate while wearing the mantle of judicial restraint.

‘A Heavy Burden of Justification’

“People say I’m a libertarian,” Justice Anthony Kennedy told The New York Times in 2005. “I don’t really know what that means.” Most libertarians would tend to agree with him. In 2004, when the libertarian lawyer Randy Barnett stood before the Supreme Court to explain why his client, a cancer patient named Angel Raich, was not engaged in interstate commerce because her medical marijuana had been cultivated and consumed entirely within California, Kennedy did not buy it. Several months later, he joined Justice John Paul Stevens’ majority opinion upholding the federal ban on marijuana as a valid exercise of congressional power under the Commerce Clause.

But Kennedy seemed to have a different take on the reach of federal power when Solicitor General Verrilli made his case for the individual mandate. He not only suggested that Verrilli had “a heavy burden of justification” but also described a mandated purchase as so “different from what we have in previous cases” that it “changes the relationship of the federal government to the individual in a very fundamental way.”

At another point, however, Kennedy seemed inclined to accept the government’s argument that all of us will at some point receive health care, so it is reasonable to regulate the manner in which we pay for it. In an exchange that occurred toward the end of the day’s oral arguments, he referred to an uninsured young person as “uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.” Then again, Kennedy prefaced that statement with yet another reference to the government’s failure to articulate a limiting principle. “The government tells us that’s because the insurance market is unique,” he said. “And in the next case, it’ll say the next market is unique.” 

Will Kennedy’s willingness to accept the government’s description of the health care market outweigh his discomfort with the government’s potentially unlimited assertion of congressional power? The future of ObamaCare may depend on the answer to that question. We won’t know for sure until the decision comes out (likely in late June, at the end of the Court’s current term), but it may be significant that Kennedy interrogated Verrilli far more aggressively than he did the law’s challengers.

‘A No-Brainer’

When this article went to press, the Supreme Court had not yet issued its health care ruling, but the oral arguments suggested the decision, whichever way it goes, will be close. Which is a far cry from the cocksure predictions of victory made by the PPACA’s defenders during the last two years. “I am quite sure that the health care mandate is constitutional,” Harvard University law professor Charles Fried, a solicitor general in the Reagan administration, testified before the Senate Judiciary Committee in February 2011. “I would have said [it’s] a no-brainer,” he added with a condescending smirk, “but I mustn’t, with such intelligent brains going the other way.” 

Other PPACA supporters did not bother to mask their contempt for the legal challenge. “Under existing case law this is a very easy case; this is obviously constitutional,” University of Virginia law professor Douglas Laycock told The New York Times in a front-page story that ran the very day the Supreme Court wrestled with the constitutional questions raised by the individual mandate. The law’s challengers, Laycock breezily asserted, were “going to lose 8 to 1.”

I caught up with Randy Barnett, an architect of the legal challenge that Laycock so casually dismissed, on the front steps outside the Supreme Court a few minutes after oral arguments on the mandate had concluded. He did not look like someone who had just suffered a defeat. “The people who confidently predicted this was an 8-1 or 7-2 case are wrong,” he declared. Although Barnett declined to offer any further predictions, he could not hide the satisfaction in his voice. “It’s a very closely divided Court,” he said with a smile, “and we’re going to have to wait and see how it goes.” 

Damon W. Root is a senior editor at reason.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Concerned Citizen||

    I hope Obamacare goes down in flames before I off myself.

  • Almanian's Evil Twin||

    "Because fuck you, that's why."

    How hard is this? It's not.

  • ||

    So, we're expecting the Supreme Court to release its decision on Obamacare any day now, right? The anticipation is killing me.

  • Espantapajaros||

    I'm not optimistic. For all his pontification, Scalia's still the dumbass who shat out Raich. It's in Kennedy's hands, and I think he'll be more sensitive to progressive desires for judicial activism than he was in CU.

  • Tulpa the White||

    Raich had a KULTUR WAR element that this one doesn't (or at least he's on the other side of ).

  • sarcasmic||

    Raich is different because marijuana is bad. M'kay?
    It's bad because it's bad. M'kay?
    It's OK to ban it because it's bad. M'kay?

  • Dr. Thaddeus Tingleberry||

    A cogent summary of Scalia's rationale in that case, actually.

  • Espantapajaros||

    I wish I could find the story on CNN, but I'll never forget reading this one sentence in a story that described libertarianism as a "belief" that "government is limited in the kinds of laws it can write".

    A fucking "belief"? No wonder people are acting surprised at issues like the seeming failure of PPACA when they can't view the judiciary as any more than a legislature of last resort for progressive ambitions.

  • Concerned Citizen||

    Are you serious? Are you serious?

  • Espantapajaros||

    Yes. It was around the same time the media was experimenting with the term "cyberterrorist". I searched CNN to no avail, I've probably not got the quote exactly right, but I do recall accurately the notion that it was a "belief", and not self-evident by the plain text of, say, the first amendment.

  • Dr. Thaddeus Tingleberry||

    Ha!

    Speaker of the United States House of Representativies, Laides and Gentlemen.

    She can not be expected to have familiarity with the allocation of power our founding document describes.

  • Tulpa the White||

    That's not just libertarianism, either. There are many political philosophies that would limit the kinds of laws govt can enforce, with the limits being different.

  • Pro Libertate||

    It's a totally obscure fringe belief that somehow got sneaked into almost every sentence of the Constitution. Clearly the work of time-traveling libertarians with absurdly good handwriting.

  • Tulpa the White||

    Nor did liberal Justice Stephen Breyer do the government’s case any favors when he chimed in to say that “yes, of course” Congress can “create commerce where previously none existed,” which could include forcing all Americans “to buy cellphones” to facilitate the provision of emergency services (a hypothetical posed by Roberts).

    FUCK OFF SLAVER.

  • Zombie Jimbo||

    So, in Lopez, the government argued that school gun violence, taken in the aggregate, undermined the nation’s educational system, which in turn substantially affected the U.S. economy.

    I never looked that closely at that case but it really appears that the US Solicitor General, used "Fuck you, that's why." as an argument.

    Staggering

  • juris imprudent||

    And the Court's answer to that absurdity was 'as long as you make the proper incantation, you may employ the power to regulate commerce' (i.e. a "finding" that links the legislation to the enabling Constitutional power). Which Congress happily has done ever since - dutifully declaring the impact on commerce of whatever dumbshit scheme is on their minds.

  • Dr. Thaddeus Tingleberry||

    Given how fast and loose various courts have been with the 'plain text' never mind original intent - I'm not sure why states couldn't [again, n/w the Constitution] simply print their own currencies for purely in-state transactions]. You could buy pot, but only with the state's currency... as to challenges to issuing coin... for goodness' sake that didn't stop Congress from giving it to private banks in 1913, so, as a matter of democratic principles, all bets should be off.

    Competing currencies might lessen the deleterious impact that the zombie apocalypse will have on the national economy... which is roughly the net transactions in goods and services remaining after government in all its layers takes its jack...

  • Tulpa the White||

    Sad thing about Lopez is that Congress passed an essentially equivalent law a year later, just with the wording changed to say that the gun involved must have "traveled in interstate commerce".

  • Dr. Thaddeus Tingleberry||

    'Progressives' are hoping the court goes 5-4 for the mandate - then it's a hop and skip to implanting you with a chip to report your second big mac.

    The real problem is things that might be satire are no longer necessarily.

    If you see a brighter and better world, and see the Constitution as a mere 'guideline' and the Will and Concent of the governed as an antiquated and quaint notion... then you'll give government unlimited power to do things you like policy wise...

    as well as things you don't like.

    A point left-liberals are simply too obtuse and self-righteous to understand.

    Dum dee dum.

    Meanwhile, time to go long ink toner and Au, and short common sense.

  • Apparently a 'statist'||

    "then it's a hop and skip to implanting you with a chip to report your second big mac."

    Lolbertarianism.

  • R C Dean||

    The decision will be released June 25

    Its a tossup, folks. I have noticed that nearly everyone seems to have slipped into the assumption that the forces of good will triumph. Don't. There's a 50/50 chance the whole law will be upheld. If the mandate gets struck down, I believe there is relatively little chance they will strike the entire statute. Why expose themselves to lefty backlash, when that can is just begging to be kicked back to Congress?

  • Almanian's Evil Twin||

    Agree - this is no slam dunk for the Good Guys®.

  • Pro Libertate||

    Please, please, please let this be a big win for limited government, despite there being almost no chance of that. Rogue clerks, serve us now.

  • Tulpa the White||

    If they strike down only the mandate, that's the death knell of private health insurance in this country.

    We'd be better off if they uphold the whole thing.

  • ¿Ex Nihilo?||

    We'd be better off if they uphold strike down the whole thing.

    This is what you really meant, right?

  • NoVAHockey||

    If it's struck down entirely, they'll go for single payer -- probably under the "Medicare-for-all"

  • ¿Ex Nihilo?||

    If it's struck down entirely, they'll go for single payer -- probably under the "Medicare-for-all"

    I would rather them try that as I don't think they can get the votes for it. It would also have a bit easier time passing constitutional muster (similar to SS). It would be the government providing the "product" rather than forcing individuals to buy a private product.

  • Andrew P||

    If only the mandate is struck down, we still end up with Single Payer. Insurance will be unavailable in any State that refuses to impose the mandate on its own after a couple of years. That is why Pelosi did not need to read the bill. It was intended to be a forcing mechanism to her desired end state - complete socialization of medicine.

  • Espantapajaros||

    The progressives could easily sabotage the industry by leaving in the coverage requirements, then blame private industry as a means to increase public support for single payer.

    That would suck big balls.

  • ||

    We'd be better off if they uphold the whole thing.

    The final death of enumerated powers is far worse than the death of private health insurance. It'll be easier to unwind PPACA than to resurrect enumerated powers.

  • ||

    Let the market decide whether the death of private health insurance is a good or bad thing.

  • Tulpa the White||

    Why expose themselves to lefty backlash, when that can is just begging to be kicked back to Congress?

    The Dems will filibuster (assuming they even lose the Senate which is looking more and more dubious) any attempt to repeal the ban on denying coverage for preexisting conditions.

    And don't forget that voters LIKE that provision. So it's the GOP that would be taking an electoral risk trying to repeal it.

  • Brett L||

    Oh, good. Much as I am in favor of a do-nothing Congress, and much as I am in favor of divided houses in favor of achieving this, allowing Harry Reid to continue to pass only shitty laws and CBRs just pisses me off. In a just world, he would have been tarred, feathered, and ridden to Union Station (or Reagan Inatl) on a rail to be sent back to Nevada where the citizenry spat on his shoes every time they encountered him.

  • NoVAHockey||

    My fear is that they uphold it just out of laziness. Too much work has been done to implement it and it would be too disruptive to stop now.

  • John||

    Because they would have to kill the doctrine of severability. You can't even lie your way out of that one and limit it to its facts. The Congress specifically did not include a severability clause as a political compromise. The only way to strike down the mandate but uphold the law is to say that severability is no longer a valid judicial doctrine. They are not going to do that.

    They have life appointments RC. And if they kill the mandate they will get lefty backlash to 11 anyway. Either the whole law goes down or it all stays.

  • R C Dean||

    SCOTUS already has given itself the discretion to sever a law regardless of whether there is a severability clause.

    Here's what I think will happen: if there is a fifth vote to strike down the mandate, it will be purchased as part of a deal that allows severability, and the five judges writing that opinion will be the four who voted for the law, plus Kennedy. Separate opinions on the holding and the remedy are hardly unknown.

  • John||

    Where did SCOTUS give itself the discretion to do that? Sure they have read it in places where the legislative history is unclear. But those cases are different than this case. In this case the legislative history is crystal clear. If you create a severability clause here, you are saying courts can create one any time they wish regardless of the legislative history. And even Kennedy is not going for that.

    You assume that they are just totally craven and political with no regard for law or the future precedent a case sets. And I don't beleive that. I don't always agree with them, but with the exception of Kagan who seems to be a legitimate political hack, I think all of them liberal and conservative at least try to uphold the law and think about the future consequences of the decision. They are not going to horse trade this decision based on not offending the New York Times too much.

    They are either going to let the whole thing stand or strike it all down. You watch.

  • R C Dean||

    Where did SCOTUS give itself the discretion to do that?

    Sarbox, apparently, lacked a severability clause as well. Yet SCOTUS struck one part of it in the Free Enterprise Fund case (see pages 27 - 28):

    http://www.supremecourt.gov/op.....08-861.pdf

    "Generally speaking, when confronting a constitutionalflaw in a statute, we try to limit the solution to the problem,” severing any “problematic portions while leaving theremainder intact.” Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 328–329 (2006). Because “[t]he unconstitutionality of a part of an Act does not necessarily defeat or affect the validity of its remaining provisions,” Champlin Refining Co. v. Corporation Comm’n of Okla., 286 U. S. 210, 234 (1932), the “normalrule” is “that partial, rather than facial, invalidation is the required course,” Brockett v. Spokane Arcades, Inc., 472
    U. S. 491, 504 (1985).

  • John||

    But read the guts of the case not just the summary.

    The Sarbanes-Oxley Act remains "'fully operative as a law'" with these tenure restrictions excised. New York, 505 U. S., at 186 (quoting Alaska Airlines, Inc. v. Brock, 480 U. S. 678, 684 (1987)). We therefore must sustain its remaining provisions "[u]nless it is evident that the Legislature would not have enacted those provisions . . . independently of that which is [invalid]." Ibid. (internal quotation marks omitted). Though this inquiry can sometimes be "elusive," Chadha, 462 U. S., at 932, the answer here seems clear: The remaining provisions are not "incapable of functioning independently," Alaska Airlines, 480
    U. S., at 684, and nothing in the statute’s text or historical context makes it "evident" that Congress, faced with the limitations imposed by the Constitution, would have preferred no Board at all to a Board whose members are removable at will. Ibid.; see also Ayotte, supra, at 330.

    In the case you site, the act could still function. Obamacare cannot function without the mandate. And moreover, the Congress knew that and thus specifically did not include the severability clause. There is just no way around it.

  • R C Dean||

    The point, John, is that the Court has the discretion to sever or not, regardless of whether there is a severability clause.

    Sure, under the current doctrine, they could exercise their discretion to strike the whole law.

    Or, they could exercise it to not strike the whole law. ObamaCare can still function without the mandate - it will run up a hell of a deficit, since that mandate is really its primary funding mechanism, and it would destroy the insurance industry in short order, sure. Those aren't Constitutional flaws, though, just offenses against decency and common sense.

    But if Congress had passed it as is without the individual mandate, it would be Constitutional (under current Commerce Clause doctrine), yes? And that means that the Court can sever the mandate and leave the rest intact.

  • John||

    But if Congress had passed it as is without the individual mandate, it would be Constitutional (under current Commerce Clause doctrine), yes?

    That is not the proper question. Read the case. The proper question is can the law still function as intended without the unconstitutional provision. And clearly Obamacare, for the reason you mentioned, cannot. It is all or nothing. Just striking the mandate is the least likely outcome. They are more likely to uphold the entire law than gut it like that.

  • Dr. Thaddeus Tingleberry||

    Interesting that you don't feel the express lack of a severability clause enters the picture...

    In its absence, they are more likely to strike it in this case because, mostly, the IM is integral to the legislative scheme, and, also, in a certain sense it would be more intrusive {subject the SC to more blame} to essentially have a line-item veto of Frankenstein legislation.

    Then again, just cause the executive can't have a line item doesn't mean judges shouldn't have one, wot?

  • John||

    And the case you give doesn't stand for the propesition that the Court has discretion to sever or not. It stands for the proposition that the court should only sever where striking down the unconstitutional provision prevents the law from functioning as intended.

    You are misreading the case.

  • ||

    But if Congress had passed it as is without the individual mandate, it would be Constitutional (under current Commerce Clause doctrine), yes? And that means that the Court can sever the mandate and leave the rest intact.

    Correct, RC. This is why HillaryCare would have survived judicial review, as it had a legally discrete tax as the main funding mechanism as opposed to forcing the public at large to purchase a product. I still stand by my prediction that they will sever the mandate and leave mostly the rest in toto.

    Either Justice Ginsburg (if they do not sever and uphold in toto) or Kennedy (sever, but leave the rest) will write the majority opinion. The result will be de facto Medicaid for all administered by the States through the State Exchanges, which is the entire point of ObamneyCare.

    I will cum buckets if the entire thing is struck down, but I believe I will be denied such an orgasm.

  • John||

    I bet they strike it down in toto or leave it in toto. When that happens I won't gloat much Groovus, at least not with you since you are a doctor no a lawyer. I will however be merciless with RC.

  • ||

    When that happens I won't gloat much Groovus, at least not with you since you are a doctor no a lawyer.

    John, you can gloat till the cows come home, but with the exception of the speed of implementation, my predictions of this law have not been wrong.

    If I didn't believe so strongly and resolutely that this law will stand either in toto or the most cost-ineffective legislation intact, I would not be fleeing the country. If I am wrong, I am gladly wrong, and may even come back to the US. If I am right (and I believe I am) then I may (and most likely) live the rest of my days as expat.

  • Dr. Thaddeus Tingleberry||

    Agreed.

    I think they'll strike it 6-3. They have to.

    for all the chatter, it's really a slippery slope argument. Guys like Tribe able to seriously aver that Nancy et al can make you buy broccoli - essentially conflating "right" policy with "cogent" Constitutional analysis.

    Basically, I think it's not the only argument, but the most stark is simply... if they can do this, what else can they do? what can't they... that in turn serves to remind one that regulation of commerce, especially in light of the 9th and 10th amendmnts [which, I understand, do exist] isn't a blank check...

    great article and great comments...

  • John||

    Again, Groovus, the question is not "is the rest of the act minus the mandate constitutional". Of course it is constitutional. If it wasn't they would strike those provisions down on their own. The issue is "can the act still function as intended without the stricken provision". And Obamacare doesn't pass that test with regard to the mandate.

  • ||

    Again, Groovus, the question is not "is the rest of the act minus the mandate constitutional". Of course it is constitutional. If it wasn't they would strike those provisions down on their own.

    This is not in question; Scalia himself admitted as much. What he said was SCOTUS (read: Scalia) didn't want to do a entire review of 1800+ pages of legal mumbo jumbo.

    Scalia's statements went to the fact that SCOTUS, minus the mandate, would be crafting new law out of existing cloth, something that does have precedent in SCOTUS decisions as RC points out.

  • John||

    No Groovus, Scalia was saying it was self evident that the law couldn't stand without the mandate.

  • John||

    And once again, read the case the RC so graciously provided for us. It doesn't support your proposition. It supports mine.

  • Andrew P||

    Obamacare can function as intended if the States impose the mandate on their own. It is clear that a number of States intend to do this. If only the mandate is struck, insurance will only be available in those states that impose a mandate after a couple of years.

    The court could also strike entire sections or titles of the law that are closely tied to the mandate without striking the whole thing. They might also strike aspects of the medicaid expansion but leave the rest intact, mandate included. There are an infinite number of possibilities. We just have to wait and see.

  • Dr. Thaddeus Tingleberry||

    Nope - SCOTUS ignores, creates, or 'infers' severability at will. Lots of cases on that....

    Here, let me google that for you...

    http://bit.ly/KoiGVN

    This shoudn't surprise you - read O'Connor's opinion in the Michigan Law affirmative action case in which she tells us that since the 14th prohibits discrimination based on race, when the government does it, it should only do it for a while.

    Yes, Virginia, that really was SCOTUS giving itself the power to sunset Con. violations applied to the states 'selectively' via another power the SC gave itself.

  • Andrew P||

    Obamacare can function almost exactly as intended if the Federal mandate is struck by itself. Not exactly, but close enough for government work. The law can simply be taken as a strong incentive for the States to impose an individual mandate on their own if Congress cannot do so, just like with the drinking age. In practice, every State will have the option of imposing an individual mandate, imposing a tax to fund a single payer system inside the state, or have no private insurance available within the State at all.

  • Tagalog||

    When Nancy Pelosi said "Are you serious?" to the question about the Constitutional underpinnings of Obamacare, that's when I knew she knows nothing about the Constitutional and Constitutional law. And when what's-his-name said "That's not a serious question," that's when I knew Pelosi's supporters and colleagues don't know anything about the Constitution and Constitutional law.

    And they call US the stupid party.

  • sarcasmic||

    It's not that they don't know.

    They don't care.

    The Constitution is, like, old and stuff. You know?

    Do not consider what it written, consider who wrote it.
    It was written by rich, white, slave-owning men.
    Rich. White. Slave owners. Men.
    No women. No poor people. No black people.

    Doesn't matter what the Constitution says.
    When you consider the source, it doesn't deserve any respect.

    Remember that where the left is concerned, principles do not matter.
    Only principals matter.

  • Libertymike||

    I really like the last two sentences.

    Do I have your permission to borrow them? With propert attribution, of course.

  • sarcasmic||

    I'm sure I stole it from someone. Maybe not. I dunno.

    Feel free.

  • T o n y||

    So at what point in history did higher education standards slip to the extent that libertarian bullshit became an acceptable legal doctrine?

  • Libertymike||

    The point at which you were handed a diploma.

  • R C Dean||

    From approximately 1787 until the late 1930s.

  • Concerned Citizen||

    Think about it, T o n y. For a while, there was no income tax, no military draft, no federal reserve (and no inflation), all drugs were legal, and people could afford to pay their doctors out of their own pockets! It must have been hell.

  • sarcasmic||

    Think about it, T o n y.

    You're asking a lot from Emote Boy.

  • Concerned Citizen||

    My bad. Hard to imagine, isn't it, that gov't was 10% the size it is now, we had lawful currency, no drug war, people ran their own lives, and reaped the rewards or suffered the consequences. And yet, people came here from all over the world.

  • sarcasmic||

    And yet, people came here from all over the world.

    And now people are leaving.

  • Apparently a 'statist'||

    "and reaped the rewards or suffered the consequences."

    And then the capital classes and the labor classes started fighting, and the labor classes democratically allowed the New Deal and more and more government to defend themselves.

    They tried the rugged life. Didn't like it.

  • John||

    In fairness, sure they could pay for their own doctors. But until about the turn of the 20th Century, that got them a leech or amputation.

  • Concerned Citizen||

    1978 my sister paid $8 for a prenatal doctor visit. That wasn't the co-pay or the deductable, that was the charge for the visit. And the doctor had a staff of 1 to handle the paperwork.

  • sarcasmic||

    1978 my sister paid $8 for a prenatal doctor visit.

    Then came The Most Conservative President Ever™.

    Fuck Reagan.

  • Concerned Citizen||

    You're not suggesting that Reagan caused medical costs to skyrocket, are you?

  • sarcasmic||

    You're not suggesting that Reagan caused medical costs to skyrocket, are you?

    Yes. Yes I am.

    http://en.wikipedia.org/wiki/E....._Labor_Act

  • Concerned Citizen||

    You fucking idiot, that entry said numerous times that Congressed passed that act. You do know that presidents aren't god-kings, don't you? There was no mention of what Reagan thought of it or if he vetoed it. Thanks for exposing yourself as an idiot, I won't waste the time to read any more of your entries.

  • sarcasmic||

    There was no mention of what Reagan thought of it or if he vetoed it.

    First sentence in the article:

    The Emergency Medical Treatment and Active Labor Act (EMTALA)[1] is a U.S. Act of Congress passed in 1986 as part of the Consolidated Omnibus Budget Reconciliation Act (COBRA).

    Click the link.

    First sentence:

    The Consolidated Omnibus Budget Reconciliation Act of 1985 (or COBRA) is a law passed by the U.S. Congress on a reconciliation basis and signed by President Ronald Reagan

    idjit

  • John||

    That act didn't raise overall medical costs. The fact is that those people were getting treatment anyway. There were tons of charity hospitals that took them. It just mean that non charity hospitals stabilized those patients and then transported them to a charity hospital. The whole act was created a bunch of bull shit scare stories.

    yeah, that act was bad. But when you consider that those people were getting treated anyway, it didn't raise the overall price of healthcare, just who was paying for it. Again, that is not good. But it is not the affect you are arguing for. If the act actually had raised medical care costs in the aggregate, then the scare stories would have been true and those people would not have been getting care. And that was just not the case.

  • sarcasmic||

    The act shifted costs to government third party payer, which always causes prices to rise.

    Like I said. Fuck Reagan. Anyone who thinks he's a conservative must pay their mortgage with a credit card.

  • John||

    But the costs were already shifted to a third party payer, the charity hospital. The fact is that there were a certain number of people who couldn't pay for medical care before the act. And those people received the same amount of treatment both before or after that act. So there total contribution to medical costs stayed the same. And both before and after the act the costs were still being paid for by someone else. So whatever inflationary pressures were created by a third party taking care of it were there before the act just as much after.

    Again, that act didn't increase total medical costs.

  • sarcasmic||

    But the costs were already shifted to a third party payer, the charity hospital.

    Reread what I wrote.

    government third party payer != charity hostpial

  • John||

    The affect is the same either way whether it is government or the charity hospital. In both cases people are getting something for free.

  • sarcasmic||

    There is an important distinction.
    Charity relies on voluntary contributions, and is thus has an incentive to keep costs down.
    Government has no such incentive.

  • R C Dean||

    Again, that act didn't increase total medical costs.

    Actually, I think it did, because EMTALA created an overt entitlement to go the emergency room and get taken care of.

    Sure, you could do that before, but by making it overt, I believe it changed the way people acted. Once EMTALA passed, hospitals generally began getting a lot more people in their ERs who weren't looking for emergency care.

    It legitimized and entrenched a costly entitlement mentality.

  • Concerned Citizen||

    So John, you're saying that Congress did some grandstanding to take credit for solving a problem that private individuals were already taking care of? I'll buy that.

  • John||

    Because Reagen was elected God king and specifically decreed that medical prices must rise above inflation.

    Really?

  • sarcasmic||

    Because Reagen was elected God king and specifically decreed that medical prices must rise above inflation.

    Just because unintended consequences are unintended doesn't absolve the well-intentioned signer of legislation of responsibility.

  • sarcasmic||

    People could pay for their own doctors into the 1960s.

  • T o n y||

    Even people with no money? Or is being poor a crime punishable by death in libertopia?

  • Concerned Citizen||

    Back then, being poor was a temporary condition, and people had pride and found a way to pay their bills. Your Great Society put an end to that foolishness.

  • sarcasmic||

    Even people with no money?

    The Great Society was not created due to a lack of charity, but to take the shame out of it.

  • Concerned Citizen||

    And that has worked out so well. 47% of Detroit is literate, and the black community has been destroyed. The prisons are full of fatherless black men, but hey, at least there's no shame it getting your entitlement!

  • sarcasmic||

    CC - My point was that is was a "solution" to a non-existent "problem".

  • Concerned Citizen||

    See my 1:41 post

  • sarcasmic||

    See my 1:41 post

    So we're in agreement.

  • Concerned Citizen||

    It would appear so. Sorry, I get a little defensive regarding Reagan. I know he was no libertarian, but the left hated him with a burning passion, so he couldn't have been all bad.

  • sarcasmic||

    Sorry, I get a little defensive regarding Reagan.

    MADD
    Ramped up Drug War
    militarization of the police
    nearly tripled the budget deficit
    amnesty
    drinking age

    That's off the top of my head.
    Government EXPLODED under Reagan.

    Fuck him.

  • Concerned Citizen||

    Gov't has exploded under every president since Woodrow Wilson. I just remember getting out of high school in 1981 and soon after the economy took off like a rocket, and my liberal college professors we convinced that Reagan would get us all nuked. He compromised way too much with the libs, and the drug war on steroids was due to Tip O'Neil trying to find an issue the liberals could look tough on. If I recall, MADD is a private organization, the drug war was going to get ramped up no matter what, the budget deficit is Congress' responsibility. Amnesty is fucked up, and the drinking age is a State issue.

  • sarcasmic||

    Reagan got elected on a platform of cutting government, and under his watch it exploded.
    He was a liar and a hypocrite.
    Fuck him and fuck Hannity and all the other pundits that hail him as the patron saint of conservatism.
    If he was a conservative then Obama is a classical liberal.

  • Sevo||

    T o n y|6.11.12 @ 1:24PM|#
    "Even people with no money? Or is being poor a crime punishable by death in libertopia?"

    Is being stupid a great value for shithead?

  • Faithkills||

    Even people with no money? Or is being poor a crime punishable by death in libertopia?

    Everyone has money. Before the health care market was fascised medical care was no more expensive than any other skilled labor. As it should be, as it would still be if we had a free market.

    We now have a fully fascised health care system.

    Provider supply is strictly limited by the AMA/AAMC.
    Insurance is subsidized and the subsidy is only granted via employment.
    Insurance is cartellized within each state.
    Various special interests have secured mandates for insurance coverage of their specific service.
    The AMA has used their licensing authority to prevent any active competition between providers, drive out competing forms of medicine, and also notably to ensure fee-for-service is the sole business model for medicine.
    Pharmaceutical companies have been granted monopolies on drugs, whether they invent them or not (ie colchicine), and the costs of protecting their IP is socialized onto the taxpayer.
    Medicare and medicaid's essentially "Cost-minus" model shifts costs onto private consumers.

    The entire system is designed to baffle the mechanism for reducing costs, competition. Every one of these interventions drive costs up, by obfuscating consumer perception of real costs.

  • Faithkills||

    Further massive resources are shifted by all of these monopolist actors into ensuring their portion of the markets remain protected.

    It costs a lot of money to keep congress lobbied and to hire CEO's with the appropriate connections to ensure favorable laws and regulation are maintained.

    In a free market profit is made by pleasing the customer. This always has to do with decreased price and improved quality.

    In a fascised or socialized market, profit is made by pleasing politicians. This has to do with squeezing enough rent from the consumer to keep the politicians bought.

    The fundamental problem with progressives, left or right, is that they want the power that allows for corruption to exist, but insist that this time for sure we will find angels that will seek this power, secure this power, then never use it, nor be corrupted by it.

    "Let no more be said about the confidence of men, but bind them down from
    mischief with the chains of the Constitution"
    -- Thomas Jefferson

  • John||

    I know. But the government is not totally to blame for medical care getting more expensive. Part of the reason is that it has gotten a lot better. And we are a lot richer. So there is nothing wrong with spending more of our incomes on medical care. It sounds like a good thing to spend our money on if you ask me.

  • Concerned Citizen||

    Well, consumer electronics keep getting better and cheaper, and that's not due to an act of Congress. Look at housing, education, and health care. The more gov't has gotten involved, the more expensive and fucked they have become.

  • Concerned Citizen||

    For example, laser eye surgery and plastic surgery aren't covered by insurance, and continue to get cheaper and better. Or am I imagining that?

  • Brett L||

    I'm still not taking up the 1/2 price Lasik surgery LivingSocial coupon. I want to pay full price for that, tattoos, and dentistry thank you very much.

  • T o n y||

    What was average life expectancy in that era?

  • Concerned Citizen||

    Whatever it was, it was increasing. Unlike your Soviet Union, where it is decreasing, even with gun control and universal health care.

  • Sevo||

    T o n y|6.11.12 @ 1:23PM|#
    "What was average life expectancy in that era?"

    What other irrelevancy can shithead post?

  • Faithkills||

    Life expectancy is an illogical metric when talking about health care. You may as well measure the reliability of cars by counting how many get hit at train crossings.

    Comparative outcomes is the metric. How many people survive possibly terminal illnesses. In that metric more free market systems always produce better results. Our fascist system produces better results than socialized systems. But it could be, and should be, better.

    And yes, medicine in the US was was better in that period as well.

    It still is. People come to the U.S. from all over the world when they have a serious illness.

    Quality is not the problem here, as it is in Canada or the UK. Cost is.

    That can be easily remedied by replacing our fascist model with a free market capitalist one. IE stop protecting everyone's interest but the consumer.

  • califernian||

    ""robust libertarian legal movement that insisted Congress may not exercise powers the Constitution does not grant."
    "

    What part do you disagree with Tony?

  • Sevo||

    T o n y|6.11.12 @ 12:39PM|#
    "So at what point in history did higher education standards slip to the extent that libertarian bullshit became an acceptable legal doctrine?"

    At what point will shithead ever post without lying?

  • ||

    Good luck with that.

  • ||

    So at what point in history did higher education standards slip to the extent that libertarian bullshit became an acceptable legal doctrine?

    1776

  • ||

    $

  • Dr. Thaddeus Tingleberry||

    When Harvard Law professors told us Congress can make you buy broccoli but can't make you eat it - because, why, that which is "Constitutional" is that which vapid Ivy League twats pull out of thin air like so much fiat intellect.

  • Libertymike||

    All of my life's experiences tell me that Ivy matriculees are not necessarily the best and the brightest.

    In fact, an Ivy boy or gal is much more apt to be syntactically challenged. Their speech is far more apt to be fraught with filler (think Obama speaking extemporaneoulsy without the teleprompter).

  • Apparently a 'statist'||

    No politician mandating broccoli would get elected or reelected.

    How come libertarians always assure us customers would punish bad companies on their own without agencies overseeing private enterprises ("No need for the FDA - consumers will punish companies with poor health standards!! SLAVER!"), but libertarians have no faith in the ability of voters to strike down bad politicians?

    Is it because they are inconsistent and constantly prevaricating? MMMmmprobably.

  • Nyarlathotep||

    CDN$

  • shamalam||

    Damon, My compliments on this absolutely article! Seriously, as a non lawyer this article taught me a lot about the commerce clause and its tortured history beginning with the new deal. Talk about "unintended consequences"!!

  • shamalam||

    insert "superb"

  • Dr. Thaddeus Tingleberry||

    The wonderful thing about regulating interstate commerce...

    Is the commerce, apparently, doesn't need to be interstate.

    http://www.forbes.com/sites/ar.....uce-costs/

    And then there's the one about the government saying you can't sell pot based on regulating interstate commerce, then arresting people for in-state use because hey, when enough people in a state smoke pot, that's affecting the overall, non-existent and forbidden market in inter-state pot.

    Go back to sleep.

  • Dr. Thaddeus Tingleberry||

    Apropos of little - where in the Constitution did it give SCOTUS the right to *selectively* apply the Bill of Rights against the states?

    And how do you get from equal protection under the law to enshrining race based preferences... pardon an old fool, but... isn't that... sort of... exactly what the document says you may not do?

    Seems like both wings love to conflate their *policy* aims with applying the Constitution... or 'interpreting' it to further such policy goals.

    So remember, ultimately, it's up to 5 unelected lawyers to tell you if and when war = peace, freedom = slavery, and you can teach Con Law at Harvard while claiming Congress can make you buy broccolli...although only a damned idiot would think they could make you eat it.

    Words mean what we want them to mean, you see! Democracy a dictatorship can be!

    I have misplaced my pants....

  • vicky||

    I believe the Supreme Court will do the right thing and repeal totally ObamaScare.
    If not.
    If not, the we all just refuse to buy it until we get sick, then we join the club.. :)

  • vicky||

    Dr. Tingleberry, first of all find your pants, put them on, keep them on..
    sigh.
    Back to business. No way can make us buy anything, its just not in our constitution.

  • Libertymike||

    'among the states" does not mean commerce by and between individuals or by and between individuals and voluntary associations of individuals or by and between voluntary associations of individuals.

  • dwest99||

    Forget the fact liberal social philosophy doesn't ever work, the founding fathers rejected the federal govt. could interfere with healthcar:

    "The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State."
    --Madison, Federalist 45

  • theakeman||

    If it sticks it will be scary indeed: http://modeltstocktrends.blogs.....oween.html

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  • ||

    resident Barack Obama was all smiles when he signed the Patient Protection and Affordable Care Act (PPACA) into law at a special ceremony in the East Room of the White House on March 23, 2010. “With all the punditry, all of the lobbying, all of the game playing that passes for governing in Washington,” Obama declared, “it’s been easy at times to doubt our ability to do such a big thing, such a complicated thing.” http://www.ceinturesfr.com/cei.....-c-27.html

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    Mini-sandwich ou pizza, antipasti et salades de toutes les couleurs, charcuterie, pâtes à toutes les sauces : c'est selon les adresses. On mange, on boit, on sort et on ne se ruine pas.

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