Obamacare

Don't Buy It

The crazy constitutional logic of the individual insurance mandate

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A few weeks before Congress passed a law that orders every American to buy health insurance, the Virginia legislature passed a law that says "no resident of this Commonwealth…shall be required to obtain or maintain a policy of individual insurance coverage." Two weeks later, Idaho's governor signed a law that declares "every person within the state of Idaho is and shall be free to choose or decline to choose any mode of securing health care services without penalty."

Supporters of ObamaCare say such legislation, which more than 30 other states are considering, has no force, since the Constitution makes congressional enactments "the supreme law of the land." But that is true only when federal laws are authorized by the Constitution, and the individual health insurance mandate is not.

The mandate's defenders say Congress is exercising its power to "regulate commerce…among the several states." Yet a law that compels people to engage in an intrastate transaction plainly does not fit within the original understanding of the Commerce Clause, which was aimed at facilitating the interstate exchange of goods by removing internal trade barriers.

Even a Commerce Clause stretched by seven decades of deferential Supreme Court rulings is not wide enough to cover the failure to buy insurance, a noneconomic inactivity. The two cases that led to the Court's broadest readings of the Commerce Clause both involved production of a fungible commodity for which there was an interstate market regulated by Congress.

In the first case, decided in 1942, the Court ruled that a farmer could be penalized for exceeding federal crop limits aimed at controlling supply and boosting prices even though all of the extra wheat he grew was consumed on his farm. The Court reasoned that homegrown wheat "exerts a substantial economic effect on interstate commerce" by reducing the total amount of wheat sold.

In the second case, decided in 2005, the Court ruled that Congress could ban homegrown marijuana used for medical purposes authorized by state law. Although the marijuana, like the wheat, was never sold and never left the state, the Court said, its production undercut the federal government's attempt "to control the supply and demand of controlled substances in both lawful and unlawful drug markets."

Unlike growing wheat or marijuana, the decision not to buy medical insurance does not produce anything, let alone a commodity traded between states. Maybe so, say ObamaCare's defenders, but that decision has an impact on the demand for insurance and on the health care market (one-sixth of the economy!), which the federal government is trying to control in the same way that it tries to control the marijuana trade (with similar prospects of success).

This sort of reasoning leaves nothing beyond the reach of Congress, since anything you do (or don't do) can be said to affect interstate commerce. In its 1995 decision overturning a federal ban on possessing guns near schools, the Supreme Court cautioned against the temptation "to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States." That kind of analysis, the Court warned, threatens to "obliterate the distinction between what is national and what is local."

In a recent Heritage Foundation paper, Georgetown University law professor Randy Barnett and two co-authors note that the decision upholding wheat quotas does not mean "Congress can require every American to buy boxes of Shredded Wheat cereal on the grounds that, by not buying wheat cereal, non-consumers were adversely affecting the regulated wheat market." Likewise, federal regulation of carmakers does not mean "Congress could constitutionally require every American to buy a new Chevy Impala every year."

Yet this is the logic of the health insurance mandate, an unprecedented attempt to punish people for the offense of living in the United States without buying something the federal government thinks they should have. Don't buy it.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.

© Copyright 2010 by Creators Syndicate Inc.

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  1. Are you joking?

    1. good one!

      1. Does the author telling people not to buy health insurance have health insurance himself?

        I thought so…hypocrite!

        1. Telling people to not buy health insurance when they can finally afford it. That’s stupid advice. Join the real world. Don’t give this advice to your kids.

          1. What the hell makes you think people will now be able to afford it? Because Obamalamadingdong told you it would be cheaper? Why are O’s supporters all so fucking stupid?

            1. Because they bought into the wealth envy argument hook-line-and sinker and they believe that there is a way to get something for nothing…you know “free beer”, only in their case its “free Kool-Aid”.

            2. “Why are O’s supporters all so fucking stupid?” Because they watch MSNBC?

              1. You may be on to something there, nekoxgirl. That would account for at least 6 of them (the entire viewership of MSNBC).

        2. Is 2cents a festered pus oozing vagina?

          I thought so…smelly twat!

    2. How can “Regulating Interstate Commerce” be used to justify forcing me to buy a product which cannot be purchased acrosss state lines?

      1. Because this has become a country of fucking idiots, for fucking idiots.

        1. @JoshInHb: Exactly my thought.

      2. The word you’re looking for is not “justify” — that would be the job of a Supreme Court which attempted to enforce the provisions of the US Constitution in good faith. The word you want is “rationalize”.

      3. You and your reality based logic. Don’t you know that everybody is equal…and that some are more equal than others.

      4. Josh, do you expect logical consistency? The Interstate Commerce clause was originally meant to force protectionist states’ markets open to other states’ products because the US was one country not a loose confederation of independent states. Now it is used to confine trade!

  2. The problem, Jake, is that these non-buyers will almost invariably chose to become buyers once they become ill, thus creating a large, textbook market failure.

    There is no “twisted logic” here, but rather a straightforward policy targeting the correction of adverse selection. Every other rich nation on earth has a mandate as well, for this very reason.

    1. you might be right, but where in the constitution is prevention of market failure a delegated power?

      1. before you concede anything you might want to notice that Chad alleges that it is a market failure when things don’t work out because the government passes a law forcing insurers to sign contracts against their own (well understood) best interest.

        That’s typical for Chad, but it certainly doesn’t make him right.

    2. “The problem, Jake, is that these non-buyers will almost invariably chose to become buyers once they become ill, thus creating a large, textbook market failure.”

      This wouldn’t be a problem if insurers were still free to deny coverage based on pre-existing conditions.

      I hope you’re able to see that 1) a law requiring an individual to purchase insurance is an abrogation of freedom, and 2) your claim that this imposition is a necessity to avoid market failure is only the case because the government is distorting the risk market.

      1. This wouldn’t be a problem if insurers were still free to deny coverage based on pre-existing conditions.

        True, and they also need to be able to drop people if they get sick. This is necessary to keep costs down for people who aren’t sick.

        1. I’m assuming you’re being sarcastic here.

          Snark aside, it’s equally wrong for an individual contracting for insurance to not disclose a pre-existing condition and subsequently make a claim for it, as it is for an insurance company to deny continued coverage for the full term of the contract to someone who gets sick.

          The first is fraud, the second is breach of contract.

          1. But….but I thought it was always okay to screw the insurance companies.

          2. It may be immoral to not disclose a pre-existing condition, but most insurance companies only define pre-existing conditions as something you’ve been diagnosed for by a doctor. So, if you feel some back pain and decide to buy insurance no one would be the wiser, nor would most carriers care even if you told them. But if you went to a doctor who said you have a slipped disc and then decided to buy insurance to cover surgery or PT, then they would decline you…unless you work for a large company who has a pre-existing condition waiver where anything goes. The large numbers make it easier for the insurer to absorb your costs, and they most certainly would expect some of that and rate accordingly.

            1. Actually, the large numbers make it easier for your coworkers to absorb your costs.

          3. Russ, it has been widely demonstrated how insurance companies will find any loophole to drop you, and play nasty tricks like claim the dog ate your payment (hell, they did the latter to me personally) so they can drop your coverage if they find you inconvenient. As long as it is in their economic interest to do so, they will.

            Therein lies the problem: in a functioning market, it doesn’t pay to screw your customers. In the health insurance market, it does.

            1. The reason the insurance companies get away with that is because the ‘gubmint’ has screwed up the market by restricting it so much that you don’t have other choices but to get insured by them. BTW, it was the government that decided that your employer would be the point man for insurance coverage, not the employee, they think you are too stupid to be able to decide how to protect yourself and family.

      2. Abrogation of freedom? This sort of infantile argument could be made for any multitude of regulations set up in our country. Take some states requiring you to purchase car insurance. Your same vague logic could be stretched across the board, and is thus moot.

        Insurers shouldn’t be allowed to deny coverage based on pre-existing conditions, that’s discrimination.

        1. Your argument by analogy doesn’t succeed because states can mandate insurance because driving on the roads is a privilege.

          It also fails to address the core issue of constitutionality.

        2. Not exactly … you don’t HAVE to purchase a car. You can’t disengage from your body. Health insurance is NOT like car insurance.

        3. How can denying health insurance coverage based on a pre-existing condition be wrong? If your house just burned down and then you called to get fire insurance, you would be denied coverage, not because of discrimination, but because the risk you wanted to insure against has already happened, i.e. pre-existing condition.

        4. They don’t deny coverage, they just adjust the rate upward to cover intended losses. That’s what insurance does….it adjusts based on liability.

          Why do so many losers want insurance to act as a surrogate mother??

    3. The fact that universal health coverage requires it in order to function properly does not rewrite the Constitution to make it legal.

      Our federal government flat-out lacks the authority to do this. If a state wants universal coverage with a purchase mandate, it may do so (as MA has), and those who don’t like it may vote with their feet by moving to Virginia.

      1. Couldn’t they then just require that all states require this in order to get any federal money. That would be more constitutional.

        1. But it would still be unconstitutional to hold the states’ feet to the fire on one end saying if they want the money they have to play by those rules, and put their head in the noose on the other end by making them take on these expensive programs they can’t afford anyways. That was the grounds for many governors not wanting to accept the stimulus $

    4. How is this a market failure? Anything I, or any other citizen, choose not to purchase, is a market failure?

      1. Chad assumes you are going to cost us anyway when you get shot and go to a hospital demanding to be treated and then skip out on the bill. That will drive up the cost to everyone else (much like shopkeepers raise prices to account for shoplifting losses many times)

        But maybe, just maybe, mandates for insurance are the wrong way to get everyone insured. Maybe, instead, we should reform our immigration laws (so people WORKING here illegally won’t be scared to fill out official forms), allow individuals to take tax DEDUCTIONS for health insurance (just like businesses), remove the incentive to form large monolith healthcare corporations by removing barriers against small clinics (tort reform and removing licensing schemes anyone?).

        Liberals assume Conservatives want to keep people uninsured and at risk when many of us want to just go about the same goal in a more sustainable, freedom embracing way. But of course we’re wrong and they’re right. After all, they wouldn’t be in power if they were wrong, right?

        1. Liberals assume Conservatives want to keep people uninsured and at risk when many of us want to just go about the same goal in a more sustainable, freedom embracing way.

          I wish this would fit on a t-shirt. The strawman about the opposition to this bill being nothing but “heartless” is fairly sickening, pun intended.

          1. “The strawman…” Seconded.

        2. alternatively we could prohibit businesses from taking tax deductions on benefit plans.

          1. I like this one better. I prefer to get rid of all tax incentives and bullshit games and just have a flat tax rate for everyone.

            1. Exactly…0%…is that flat enough?

              1. Ha, I like the way Soonerliberty thinks.

                1. Me too. Realistically, I would like to see a less than 10% flat rate. Market manipulation through taxes seriously piss me off more than the taxes themselves.

                  1. I’d settle for simpler tax laws. Keep the progressivity in tax rates to appease those that would back otherwise. It’s a pipe dream anyway. This is one way pols help their contributors and constituencies.

                2. Aren’t we at the point where fewer people pay income taxes than those who don’t. Those who don’t are voting for all these tax increases because they are not effected. Time for that to go away. Everybody should have to pay some percentage of their income to taxes if anyone has to pay. Maybe then these idiots at the capitol in Honolulu this week would not show up with posters asking for a tax increase, for God’s sake. Unbelievable idiots.

      2. It’s a market failure because Chad says so.

    5. Love how Chad and all the others just ignore the principle of the argument and launch into the practical defenses.

    6. Actually you are wrong. A simple solution to pre-existing conditions without mandating insurance would be make a law just like the auto insurance is. If you drop auto insurance for a few months then pick it up again, you are put into a high risk pool for 3 years.

      Do the same to health insurance. As long as you maintain health insurance they can’t hold pre-existing conditionals against you, even if you switch insurance companies. If you drop your health insurance for more then 60 days, then you sign up again, with or without a conditions, you go into a high risk pool at a much higher premium price.

      This will give people incentive to maintain health insurance without a mandate! Also, people who maintain insurance will typically do preventative care and will usually lessen the cost of a chronic condition over someone without insurance that waits until the last minute to get care, often when they are hospitalize.

    7. Every other rich nation on earth has a mandate as well, for this very reason.

      Has it ever occurred to you that this country wasn’t founded so that it could be like every other god damned slavocracy on the planet? Stupid ass.

      1. Minus the “stupid ass,” I’ve tried to make this argument to countless people over the last 3 days… none of them seem to accept it. They want to enjoy many things America has while lamenting for the social welfare that makes the EU so grand. Typical “having and eating of the cake” logic.

        But who can blame them? Cake is so delicious that I would always want to have it and eat it too. Eat so much in fact that I end up weighing 600 pounds and need a triple bypass that I can’t afford. Also the city will have to pay for the damage to my house when they have to rip down a wall to forklift me out.

        1. Are you from New Jersey? When you get to your 1000 lb goal are you going to try to maintain a perfect half ton, or go for the whole Guiness record enchilada?

        2. generic, I am sure you made these points, but in discussing the “merits” of European state-run health care with your Euro-phile friends, you should point out (1) the comparison is unequal, as the largest European state, Germany, has only 81 million people, while the US has about 310 million, with a federal system of 50 states (why bother with the 151 million of Russia, as that remains a disfunctional state whose health care system no one would want — then again, we could say ObamaCare is RussiaCare! makes the same point) (2) the USA remains the fallback health care system for citizens of single payor system countries, hence the exodus of Canadians to the US for specialized treatment, the fact that NYC gets need health care revenue by charging exorbitant medical expenses to rich medical refugees from around the world, etc. (3) Don’t accept the contention that the occasional American tourist to Europe deeply understands the nature of the European model — plenty of Europeans are fed up with the high taxation necessary to sustain those systems (65% payroll tax deductions plus a VAT on retail purchases), the poor quality and availability of care (an identifiable segment of the English population resorts to “self-dentistry” i.e. pulling their own infected teeth), etc. Moreover, the system is debasing, and based on my experience, Europeans feel that if your over 70 y.o. and you don’t have superior care to treat an illness that kills you, tough, that’s life, you’re not entitled to any more. Ask your Euro-phile friends whether any of this would go over well in America…

        3. You should start including the stupid ass, otherwise they probably don’t know who you’re talking to.

          1. I was going to say that generic Brand must be new around here, otherwise he’d know that Stupid Ass is Chad’s first name.

        4. The problem is not that they want to have their cake and eat it too. It’s that they are eating MY cake.

          1. Bullseye, Dick.

        5. “Typical “having and eating of the cake” logic.”

          No wonder we have a (mental) obesity problem.

        6. THE CAKE IS A LIE!!!

    8. The problem, Jake, is that these non-buyers will almost invariably chose to become buyers once they become ill, thus creating a large, textbook market failure.

      Similarly, life insurance fails because people wait until others die before taking out a life insurance policy on them.

    9. Thats not a market failure you dumbass. Its a planning ahead failure. The consumer might as well be adversely selecting them self, and its their own damn fault.

    10. “The problem, Jake, is that these non-buyers will almost invariably chose to become buyers once they become ill, thus creating a large, textbook market failure.”

      I’ve never heard of emergency rooms being transported across state or international borders for the purposes of trade, so what’s your point?

    11. Chad,

      Maybe you should go live in one of those ‘other rich nations’ and you too can be Euro-trash.

    12. The only reason “market failure” might happen is because since FDR the federal government has increased its interference in the health insurance market. The only way to sustain the current system is to force everyone to buy insurance but that just shows how unworkable the system is. The rational thing would be to stop all interference in the market.

  3. good morning reason

    1. good morning suki

  4. ?is that these non-buyers will almost invariably chose to become buyers once they become ill, thus creating a large, textbook market failure.

    Chad, even for a troll, you’ve got pretty thin gruel.

    How is a market failure when the market wouldn’t provide insurance to those people you cite? Actually, if anything, governmental interference with the market because the market isn’t working the way that some people think it should is the only thing that would even make that purchase (your example of a market failure) a possibility. Must-issue and community rating policies, which are supposed to fix the problems you cite, only work if the penalty for noncompliance is higher than the cost of buying insurance in the first place. Since the U.S. has not made the penalties that high, we’ve set up a situation that will only make the “market failure” worse by encouraging those who are healthy to pay the penalty and skip out on insurance until they need it. Since the market wouldn’t do that on its own, where is the fault for the failure?

    Without governmental intervention in the market, the penalty for non-compliance is actually higher than under this plan, so there is no “textbook market failure” here, but rather a textbook case of unintended consequences.

    If you really need a tutorial in this, go read up on public choice theory, which would predict the opposite of what you claim…

    1. And no, Chad, when “the market” doesn’t do everything you want it to, it does not constitute a failure. If “the market” were not so hampered by protectionism, cronyism, and mandates, it might, just might, figure a way to lower costs and make things more accessible to folks, but instead it is hampered more and more and engineered more and more to accomplish our merciful overlords’ desires. No wonder it fails, just like you’s fail to win a foot race if I give you a 150 lb lead vest.

      1. “it might, just might, figure a way to lower costs and make things more accessible to folks”

        There would always be those at the margins who could not afford it, but I thought that’s what Medicare was being used for now.

    2. And just like my grammar fails when I’m too tired.

  5. If healthcare is a right and bearing arms is a right, is the government going to make people without guns buy them now?

    1. The right to bear arms is preserved no through government action, but government inaction. My right to bear arms requires nothing of you. No laws are needed for this right, in fact all laws can do is restrict this right.

      The right to health care is created through government action. Your right to health care requires that the government forces someone else to pay for it.
      The right only exists through law, and without law the right will cease to exist.

      So which is really a right?

      1. The right to bear arms is a right, while the right to health care is a wrong.

        1. You got that right!

          There is no right to health care in this country, if that were the case then the constitution would mandate people to become doctors.

          It is a person’s free will to become a doctor, thus a doctors free will to decide who he wants to practice on.

          Doctors do, fortunately have a morale obligation to help people. However, I do not believe the government should dictate to doctors what they should make, charge, and to whom they should work on.

          1. Doctors do, fortunately have a morale obligation to help people.

            Really? How so? By what standard of morality is someone’s need for help a claim on anyone else?

            1. Immoral people typically don’t become doctors. That IS my point. If you actually read my entire posting you would have seen that I said they shouldn’t be dictated as to how much they can make, charge or to whom they should work on.

              Although most doctors do have a morale obligation to help people, if they didn’t, they wouldn’t become doctors. It’s subjective.

              1. Although most doctors do have a morale obligation to help people, if they didn’t, they wouldn’t become doctors. It’s subjective.

                Again, what moral obligation are you talking about? Do you really think people become doctors because they feel morally obligated to help or serve people? Perhaps some do, but I would dispute whatever line of moral reasoning led them to feel that way. Logically that would imply that they feel others have a moral claim on them – but by virtue of what? Are some people just obligated to serve others and therefore obligated to become doctors?

                If moral standards really are “subjective,” they are fairly meaningless and not even subject to discussion or debate – it reduces to the individual asserting that anything he wishes to do (or not do) is moral because he “subjectively” thinks it is moral, ie., it’s moral because he says so.

            2. As a Doc, I hate the fact that building a business and earning a good living is somehow wrong when you are a doc. That somehow, the fruits of my toil are community property. What other career is this the case? I am in private practice and I owe the community nothing. However, as a ER doc someone can show up in the ER and stick me with the bill; even sue. Great fucking country we gave created. And by far the worst group of patients are the entitled poor on medicaid. They are the most difficult and demanding patients that often treat myself and staff as servants. I wonder how this will change now that HC is a “right?” And if HC is a right, how did we jump right over food, water and shelter? Better add education and a job too. Glad we just wrote the Soviet Union’s Constitution.

              1. Agreed DrC.

                I am getting out of CMH as soon as I can; I am willing to take the hit initially, but the immediate effects will be worth it.

              2. Earning a better living than other people, because you are protected by the AMA cartel from the competition, IS “somehow wrong”.

                1. On what planet are doctors “protected from competition”? They compete not only with other doctors for business, but also with PAs and nurse practitioners. Dumbass.

            3. Ahem, the Hippocratic oath, perhaps?

        2. All I know is that one bill doesn’t make a right, two wrongs don’t make a right, but three lefts do make a right.

          1. And apparently the wolves outnumber the sheep at dinner time.

    2. I started making this argument last week to a liberal friend, that if Obamacare can subsidize what he sees as a “right” to primary care, surely we will need to start subsidizing gun purchases for people who can’t afford them. After all, that’s a right that’s actually IN THE CONSTITUTION.

      I am still cleaning bits of his brain and skull from all four walls of my living room. That was quite the head explosion I caused.

      We need to be sure not to let the terrorists get their hands on this powerful weapon which I have decided to call, “logic.”

      1. After all, that’s a right that’s actually IN THE CONSTITUTION.

        Yes, but it is a right for the states to have a national guard, NOT AN INDIVIDUAL RIGHT.

        1. Uh, no. But thanks for playing.

        2. I ask, sir, what is the militia? It is the whole people except for a few public officials.

        3. A right for states to have a national guard? You do see how ridiculous a statement that is, don’t you?

        4. Not according to the Supreme Court of the United States

          http://www.oyez.org/cases/2000-2009/2007/2007_07_290

        5. Bob – here’s the text of the 2nd amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”

          Notice the comma’s? We have the right for a well regulated militia (our brave soldiers, god bless them all) then a comma, then the right of the people to ALSO keep and bear arms then yet and another comma to signify that neither the militia or our right to bear arms shall be infringed!

          So you were saying?

          1. No, you’re reading the commas wrong. What the 2nd amendment is saying is that the right of the people to keep and bear arms IS what regulates the Militia – that is, public gun ownership by the people are a check against the military.

            To make this clearer, let me rearrange the phrases. “The right of the people to keep and bear arms shall not be infringed, as a well regulated Militia is necessary for the security of a free State”. See. The people regulate the militia.

            1. The militia is not the military, it is the entire class of people who are conceivably fit for military service in a pinch. As understood at the time, males who were not too young or too old who could defend their community if the official military failed or was unavailable. At least, that’s my understanding.

        6. No, ass, if you actually read the Second Amendment, which says:

          “A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.”

          If the intention were for militias to bear arms, it would have read, “the right of the people to bear arms in a well-regulated militia shall not be infringed.” What it actually DOES say is that the right of the PEOPLE to bear arms shall not be infringed. Go back to school, Bob.

        7. Tired arguement, Bob. Made me giggle, though!

    3. The right to health care is more of a left.

      1. The right to health care is more of a theft.

    4. Switzerland.

  6. Does anyone really believe that the statist assholes on the Supreme Court are going to declare the individual mandate unconstitutional?

    1. I own you mother fuckers. Yeeaaaaahhhhh!!!!

      1. No kidding, dude. How sick is it that the last remaining vestiges of freedom now depend on one man?

    2. I’d say the chances are pretty good. It’s going to come down to whether Kennedy falls on the right side and Scalia resists his occasional deference to legislators in the name of establishing constitutional precedent. The only similar constitutional precedent is the overturning of the poll tax in Harper v. Virginia Board of Elections, where the court determined the exercise of rights cannot be taxed. The Supreme Court has been pretty good over the past few years (at least since Kelo, one of the worst decisions ever), from gun rights to free speech to Guantanamo/indefinite detention. Let’s hope our lucky streak continues. You might dislike the Supreme Court, but right now they’re our only hope.

      1. Not my only hope.

    3. who would of thunk they would overturn campaign reform?

      Of course they will rule against the mandate. We just have to make damn sure we flip the senate come NOV so if any other judge resigns in Obama’s years and he wants to put in another wackjob like Ginburg, it won’t happen!

      1. She looks like a smaller skeletor.

      2. Don’t bet on it. They didn’t overturn campaign finance reform because they believed in the 1st amendment. They overturned it because a bunch of corporations wanted them too. A bunch of corporations will also want to keep the mandate for all Americans to purchase their product, so guess which way the courts will swing?

    4. Yes, actually. Many do, and for good reason.

      Dr. Randy Barnett, Professor of Legal Theory at Georgetown — and a libertarian (author of Restoring the Lost Constitution), believes it’s likely.

      He argues not just on the basis of legal principle, but concludes they likely would based on SCOTUS decisions of court cases that touch on the principles he examines.

  7. Chad,

    Actually, that isn’t necessarily a market failure; it may just be an unfortunate circumstance for the sick or injured person. Unfortunate circumstances by themselves are not market failures.

    Now, what market failure is the inefficient allocation of stuff in a market place. The question is thus whether that outcome is Pareto efficient or not.

    And of course we have as yet to discuss what this sort of mandate could open the door too … slippery slopes aren’t always slippery, but it is worth considering whether they are when you are adopting a whole new class of government power.

    1. No, it is indeed a market failure: a standard textbook one, in fact, that has been understood for nearly a century. The “free market”, even if it existed, could not actually provide health insurance in its modern form. Instead, it would have to be structured along the lines of a lump-sum payment system, where if you are diagnosed with, say, diabetes, you receive a set lump sum and that is it: you pay for your care out of your now-inflated pocket. However, this type of insurance would be so ripe for abuse and lawsuits that no sane company has ever tried it. So instead, the current model reigns, with its continual payments for chronic conditions. However, this system is full of market failures (adverse selection, information asymmetry, agency, etc) and is highly disfunctional as well.

      It is a simple matter of fact that universal coverage mitigates these market failures to a significant enough degree that costs are held down substantially, with little or no impact on quality.

      1. No, it is indeed a market failure

        What, we don’t have the right to fail anymore?

        1. We’re entering a new age of freedom.
          Freedom of choice is being replaced with freedom from choice. Let lawmakers make all of your choices for you, you just blindly follow the law.
          With all of your choices made for you you will be free from responsibility. After all, how can you be responsible if you make no choices?
          It then follows that once you are free from choice and responsibility, you become free from consequence.

          So yes, we no longer have the right to fail.

          1. A minority of Americans just want to be institutionalized, so institutionalize them in the traditional manner.

            Using the minority as the excuse to institutionalize the entire nation is a sleight of hand trick. A socialist coup d’etat and no one saw a thing.

        2. Not true. Chad fails all the time.

          1. So he’s violating his own rights. Impressive…and he should, of course, be thrown in jail for it.

      2. The market: too big to fail. Chad all these problems you cite are market inefficiencies. You make a wonkily correct, yet ultimately unconvincing argument against the market. Like democracy, the market is the worst possible solution – except for all the others. Throw stones all you like, but you are going to have a hell of a time arguing that centralized control is a better system.

        1. don’t fuck with Chad. He has a degree in Poli Sci.

          1. I thought he claimed to be like a chemist or something.

            And domo, democracy is one of the worst solutions, it sucks. Democracy doesn’t even compare to the individually based market. The market and individual freedom are better than mob democracy.

            1. Did not Chad once claim to be the “origin of the feces”?

              Or was it just feces…

              Can’t recall with certainty, but either way Chad is the Willy Wonka of Feces-spewing Factories.

            2. “The market and individual freedom are better than mob democracy.

              The organism called Colonel_Angus has been added to the short list of those “in the know.”

        2. I agree: I am “wonkishly correct”. These market failures are real, and whether they are substantial or not is a matter of practical reality, not hand-wavy theory. Critically, one must observe and see if the market failures cause more problems than the alternative government inefficiency. The answer is clearly yes, which is why every other civilized nation on earth has declined to use a primarily market-driven approach.

          1. The answer is not clearly anything. All those fucking paternalist socialist countries are on their way down already.

            1. The proof is in the pudding, Angus. We pay a lot more and don’t get a lot more, or even any more, and perhaps even less.

              1. In point of fact, Canada spends more than we do on healthcare.

      3. I think the problem started when we started finding out new ways to keep people alive longer (albeit at a higher price). If we hadn’t invented chemotherapy or AIDs drugs, we could still label the cause of death at “old” or “sick”. Its only because we’ve discovered new and labor intensive ways of keeping people in this world that we suddenly believe we have the right to stay here. This law will eventually mean we can roll back some of these innovations because the government won’t be able to afford to keep its most unproductive citizens alive when productivity falls off a cliff when they’ve taxed the shit out of the laborers.

        1. These are people who are no longer deserving of life because they don’t contribute to the economy so it is their duty to die.

          1. No, it is their duty to pay for their recovery on their own, or by petitioning generous folks for assistance in this most charitable nation on Earth, but not by taking from the productive by government force.

            Shorter Nick: Sell your flat screen or STFU.

            1. I agree with you. For over 10 years, I didn’t own a cell, no cable, no luxuries, no credit cards or fancy clothes because I had to make my monthly insurance payment because I had a pre-existing condition. Was I able to get insurance? heck yes, but it cost a lot. I put my priorities in order and paid my medical insurance instead.

              So I agree, sell your flat screen, cancel your cell phone, cancel your internet and cable, sell your new car and buy an old POS, stop buying beer, cancel your credit cards and get health insurance. All these f’n freeloaders want their cake and eat it too at the productive worker’s expense.

              I think before the government subsidies anyone, they first have to do all of the above. Then if they still can’t afford it, let the government help. Why should I pay their health insurance when I’ll have to shut off cable and internet and cell to cover the increased taxes so they can have it all!

              1. Don’t worry. The government has proposed pushing back the digital switch yet again, so you still have time to buy a receiver if you are not longer going to have cable. Call your local congressman about getting a receiver voucher!

              2. Screw cable, but that doesn’t mean you can’t have satellite. The way I see it, if its in the airwaves entering your property, its free for you to claim.

            2. Sell your flat screen or STFU.

              But….but… I CAN’T LIVE WITHOUT MY FLAT SCREEN! Life would be TERRIBLE! I have a RIGHT to a nice life!

              1. And I thought I had a right to blow jobs. Turns out I, too, was wrong.

                1. I know, right?

          2. Reporting for duty!

            (effeminate salute)

        2. Just recieved this message directly from High Command HQ:

          “From this point on, it shall be the duty of all living organisms to die when ordered to do so.”

          Unless you have recieved your “die” orders, get back to work.

          Human faces! Boots! Assume your positions.

          Ok, wun-two STOMP, wun-two STOMP, wun-two STOMP…

      4. Instead, it would have to be structured along the lines of a lump-sum payment system, where if you are diagnosed with, say, diabetes, you receive a set lump sum and that is it: you pay for your care out of your now-inflated pocket. However, this type of insurance would be so ripe for abuse and lawsuits that no sane company has ever tried it.

        Woah, woah, woah. Hold on there, bucko. You tell us what the “free market” would produce, but how do you know that? Then you turn around and tell us why no sane company would ever try it. So you you’ve just told us that the free market would produce X but no company would produce X. So just what agents make up the free market> It really doesn’t take a rocket scientist to see the contradiction here, the absolutely glaring non sequitur. This is amazingly stupid, Chad, amazingly stupid.

        Neither you nor I nor anyone else knows what the free market would do, but it sure as hell isn’t what you just wrote because the providers in a free market have to produce things that people will buy and that won’t bankrupt the companies providing it in the process. The free market would account for lawsuits and abuse and find a price and a product that works. Saying that the free market would provide some service that you just pulled out of your butt and then arguing that because companies wouldn’t produce that means the market is failing is the lowest form of straw man. This is low even by your standards.

        1. Because this is how most other insurance works, and because it largely eliminates the market failures. However, my hypothetical system is too bureacratic and unwieldy to actually work, so we are stuck with the market failures and/or government.

          My point is that normal insurance is against one-off events that do not have a chronic element (say, your house burning down, someone stealing your car, or you dying in a plane crash). Critically, health insurance differences in this respect, opening up a whole host of market failures. Additionally, health issues are not nearly as well-defined as an auto accident or a totally burned home. With hundreds of thousands of dollars riding on, say, your child’s autism diagonosis, the lump-sum model would quickly break down into lawsuit-laden chaos. Therefore, private health insurance is NOT like other insurances and uses an different model – one that contains some major issues and inefficiencies. Indeed, it is so inefficient, that government, laden with its own inefficiencies, does better.

      5. It is a simple matter of fact that universal coverage mitigates these market failures to a significant enough degree that costs are held down substantially, with little or no impact on quality.

        A simple matter of fact that is hotly debated as to its factual nature by those on both sides of the issue. My only experiences with socialized health care systems contradicts the quality bit… But that’s anecdote. But to say that it’s a simple matter of “fact.” If it were really so cut and dried, we would all be on your side. Many of us here have actual experience with both sides and don’t find your argument about “facts” terribly convincing. That doesn’t mean we like the current U.S. system, but your arguments all assume that there are only two choices and that if we don’t like yours that we must be in favor of the other…

        1. Well, my anecdotal experience with universal coverage was “same quality, half the price”. And guess what? That’s what the experts think, too.

          There are actually plenty of flavors of universal coverage. I recommend you check out the Japanese and Singaporean systems. Libertarians would probably like a lot of the elements (in particular, the high copays).

          1. “Well, my anecdotal experience with universal coverage was “same quality, half the price”.”

            In your anecdotal experience, do human beings ever need hip replacements? How about cancer treatment?

      6. “It is a simple matter of fact that universal coverage mitigates these market failures to a significant enough degree that costs are held down substantially, with little or no impact on quality.”

        Oh yeah, I needed a good laugh this morning. You really need to lay off the kool aid, Chad.

      7. However, this system is full of market failures (adverse selection, information asymmetry, agency, etc) and is highly disfunctional as well.

        Once again, Chad…

        These are market difficulties. They aren’t market failures until you can demonstrate that the efficiency of the outcome of the market is negative or that a market doesn’t exist that would provide a positive efficiency outcome. I don’t think you can.

        Simply spouting classic mechanisms for market failure without noting the rather easy ways around them doesn’t suffice.

          1. Since when did Wikipedia become a credible source?

          2. Okay, that article uses a definition of market failure that is far looser than mine. I contend there isn’t a market failure unless the actual total transaction is inefficient, not if there is any inefficiency whatsoever.

            Incidentally, by Mr. Wikipedia’s loose definition, government induces market failures incessantly! When it costs $80 for a company to employ a person for an hour, but he only gets $35 for that hour because of government taxes, you can bet your life that the result is an inefficient allocation of resources.

            Oh, yes. The government ruling in unison from Washington is way better than simple things such as waiting periods and high copays to alleviate purported market failure mechanisms in health insurance. Ha.

      8. Chad,

        “No, it is indeed a market failure: a standard textbook one, in fact, that has been understood for nearly a century.”

        You keep on making this claim, but you have not demonstrated it.

        1. Chad’s definition of market failure is “The real world produced an outcome different from what King Chad would have decreed.” He thinks, as far as I can tell, that

          1. It would be a good thing if everybody got lots of high quality care (and I’m on board with that, it would be a good thing)
          2. It sucks to be poor (true enough)
          3. Therefore the market is only working if everybody gets all the care they want and doesn’t have to pay for it (total bollocks)

          with perhaps a side dish of

          4. It’s even better if those rich bastards have brung down (hey, I have a few candidates for this treatment, too…)

          In other words Chad has a normative idea of what the “correct” market outcome should be.

          1. I wondered why the millions of liberals and progressives in this country couldn’t have just formed an organization to help all the uninsured people who didn’t qualify for Medicaid yet couldn’t afford their own insurance. You know, like a charity.

            Then I realized I was talking about liberals and progressives and remembered they would rather send men with guns to steal from me because I have a job.

            1. They aren’t about helping anyone – they’re about destroying those who are strong and able, and who can rise on their own – anyone who seems to be better off in life than they themselves. Because, if someone is better off than others, he must have been “immoral” in some way to achieve such. Because they themselves can see no way to become better off without stepping on others. It’s a very revealing confession of their own soul.

              1. And yes, I meant the singular, soul. They all wish to be a collective “we”, they think they are all “one” – treat them as such, instead of as individuals.

              2. “They aren’t about helping anyone – they’re about destroying those who are strong and able, and who can rise on their own – anyone who seems to be better off in life than they themselves.”

                Oh. You mean fascists.

                1. Oh. You mean fascists.

                  You think being strong and able, or successful and wealthy – better off in life – equates with being a fascist? Then what would be moral – being a weak, inept, and miserable failure?

        2. Don’t you get it? It’s a market failure simply because Chad says so.

        3. I will leave it to you to read the wiki articles and market failures and health care economics, and follow the links therein.

          1. And we’ll leave it to you to read a basic economics textbooks (any one will do), because you obviously have not done so.

      9. The market failure is that we don’t have enough doctors, etc. of the right specialties now. Some parts of the country are so strapped for OBs that driving hours to appointments is the norm. Wait times for new patient appointments are high as are the wait times in the waiting room once you have one. More insured people accessing the system will certainly point out this market failure.

        And how do we fix that? More doctors, tort reform, rethinking licensure. The problems are not going away just because more people have an insurance card.

        1. “And how do we fix that? More doctors, tort reform, rethinking licensure. The problems are not going away just because more people have an insurance card.”

          (I’m only here today to make “me too” posts)

        2. Tell the AMA mobsters to fuck off, let medical schools admit as many students as they want, stop rigging the market and let new service providers open up unrestricted, stop limiting the new equipment that can be purchased… How com the democrats (and republicans) haven’t been talking about things like this?

      10. So instead, the current model reigns, with its continual payments for chronic conditions.

        That is the way it should be.

      11. Personally, I don’t think anyone should have health insurance. That would be the best way to drop cost!

        Doctors wouldn’t have to hire 3 admins to deal with insurance claims. Doctors would have to compete for your business.

        You would make damn sure you weren’t getting the same test done because you would be paying for them, fraud would be reduced to a minimum because there would be no insurance companies to double/triple bill.

        Let the true free market really work. Stop ALL health insurance. Let people have health savings accounts without limits and pay cash for medical expenses.

        Instead of the government paying for medicaid, they can put up clinics and let the poor go to their clinics. Or let the doctors be allowed to take some patients for free and let them write it off their taxes. (which they can’t write those losses off now)

        1. Get the government out of the whole thing and you could choose between savings accounts, real insurance, payment plans, charity, whatever? No need to eliminate one part that works for a lot of people. The free market would be the whole ball of wax. The government needs to let it work.

        2. Or let the doctors be allowed to take some patients for free and let them write it off their taxes. (which they can’t write those losses off now)

          That would be nice, but the IRS doesn’t let one deduct as a loss a non-payment for services rendered in any profession that I know of. Their reasoning is, I guess, that if one is not paid, one has not lost anything. By the same token, one’s time and effort is not taxable either – unless one turns it into income.

      12. It is a simple matter of fact that these “failures” exist because of prior government interference in the “market” to begin with. So your argument, basically, is “look,we have screwed this up SO BADLY that you have to let us keep playing with it ’til we get it right!”

      13. “Instead, it would have to be structured along the lines of a lump-sum payment system, where if you are diagnosed with, say, diabetes, you receive a set lump sum and that is it: you pay for your care out of your now-inflated pocket.”

        No, people plan ahead for diseases that they have no way of predicting, by paying for a health insurance plan. Since the vast majority of the people who choose to have a health insurance plan will never need need a whole lot out of it, the people who do develop extreme injuries or illnesses receive a supplement to what they pay out of pocket, and they should ideally pay a significant portion out of pocket. That is, if health insurance plans were not being abused to pay for minor, easily treatable shit, like diabetes. There is no reason why a lump sum makes more sense than a system that pays for each treatment as it occurs, which would add up to about the lump sum anyway if the treatment costs could be roughly estimated.

      14. Costs in all of the nationalized systems has been rising almost as fast, and will probably increase just as quickly or even more quickly in the future. In every country in 1980 Healthcare was under 7% of GDP regardless of the type of system in place. Now, most of the major countries with nationalized care spend 10% or more of GDP, and some aren’t far behind the United State’s 17%. Healthcare costs are skyrocketing for a multitude of reasons.

        I’d argue that most of the market failures have been created by governments. The government protects the AMA cartel. Simply limiting government’s overall role would force everbody to stop rent seeking and get back to work.

      15. Chad, that is a simple matter of wishful thinking.

        Also, you should probably look up the definition of market before trying to claim that a company’s policy somehow makes it not a free market.

  8. Reason magazine, November 2004:

    Mandatory Health Insurance Now!

    https://reason.com/archives/200…..urance-now

    1. John Kerry vowed at the Democratic National Convention, “When I am president, we will stop being the only advanced nation in the world which fails to understand that health care is not a privilege…it is a right for all Americans.”

      Yay! Now we’re just as advanced as Spain and Greece!

    2. Yeah, what that article recommended was something that sounded more like Wyden-Bennett, than Obamacare, but they all included a mandate. Funny, it was the Heritage foundation that was pushing the individual mandate all the way back in the 90s. Now Reason has fallen into the hypocrisy trap. Internet is a bitch for publications that contradict themselves.

      1. It’s also a bitch for Presidents who say they will not raise taxes for anyone making less than $250k per year and then in their first year, raise taxes for a whole shit load of people who make less than $250k per year.

        There’s advocating a wrong position and flat out lying. Guess which one Reason is guilty of and which one Obama is guilty of.

        And, no, I’m not a racist.

        1. r2! 😉

  9. “non-buyers will almost invariably chose to become buyers once they become ill..”

    It wasn’t that long ago that if you were a drinker and your liver failed, you died.

    People can catch onto these things IF there no market failure.

  10. This requirement to buy insurance is a tax, and thus comes under the “if it’s a tax, it’s constitutional” line of justification, not the “it arguably affects interstate commerce, so it’s constitutional” justification.

    Now, it looks like a poll tax, so as long as it is apportioned, it’s ok?

    1. Poll tax, hmmm, probably not best to use that piece of racist past for justification for your shiny new legislation.

      1. The president is black now, so it’s OK.

      2. LiT,

        There’s nothing inherently racist about a poll tax, and some confusion as to exactly what the term means.

        Historically, it meant a direct, per-capita tax, which I would argue is appropriate for funding government services which provide all individuals with equal benefits. Nothing inherently racist there.

        The more recent meaning of poll tax was a tax payable as a condition for eligibility to vote. This is probably appropriate for funding election related costs, and while this does place a heavier burden on the poor than the rich, there’s still nothing racist about it… yet.

        What was racist was the ‘grandfathering clause’ which accompanied the poll tax, exempting white people from having to pay it while imposing it solely upon blacks whose ‘grandfathers’ had been denied voting rights due to their race.

        1. Yeah except there is this little thing called and amendment that outlaws poll taxes! So your argument that we could consider this a ‘like” poll taxes even furthers the argument that it’s unconstitutional!

          1. The amendment outlaws “the Poll Tax” or the tax on eligibility to vote. It doesn’t outlaw poll taxes or head taxes per se – that’s in the main body of the Constitution, if at all.

        2. blame my public education for the misinterpretation.

          As I recalled from 6th grade:
          poll tax = bad mmkay

      3. “Poll tax, hmmm, probably not best to use that piece of racist past for justification for your shiny new legislation.”

        Right! We can’t have any more Pollish jokes.

  11. South Dakota vs Dole was the death of federalism, Gonzalez vs Raich was the death of the commerce clause.

    Forget it, Jacob, it’s America.

  12. If this stands up to challenge then there is absolutely nothing that Congress cannot coerce the People into doing under penalty of tax.

    Our leaders will become rulers.

    1. The very first thing we HAVE to do is to stop calling them “leaders”….they are “representatives”, who, by definition,are supposed to “follow” our lead…They have begun to believe this “leader” crap, anf therein lies the problem!

    2. Our leaders will become rulers.

      Are you a recent immigrant to this country? You didn’t think we lived without rulers, did you? 😉

  13. I have heard various liberals on TV spouting the “federal supremacy” rationalization and the “regulate interstate commerce” rationalization.

    But I have also hear them start up on their usual fall back position on everything they want to do – it’s covered by “general welfare”.

    1. Anyone who spouts that “promote the general welfare” line needs to go back and study English grammar.

      That particular phrase in the Constitution is preceded by three more words, “in order to.”

      That means it’s in the subjunctive mood and dependent on the specifically listed powers and abilities elsewhere in the document and not a mandate to Congress in and of itself.

      Then again, if someone is stupid enough to buy into this shit in the first place, they’re not going to care about grammar. Let’s hope that Justice Kennedy paid attention in English class, though, because it’s going to be up to him.

      Not holding my breath on this one, however.

      1. The SC already abandoned any pretense of actually enforcing the actual meaning of “general welfare” in the Constitution when it finally rolled over and rubber stamped FDR’s unconstitutional “New Deal” programs like Social Security back in the 1930’s.

        And, of course, that decision is a SACRED PRECEDENT that must never be revisited.

        1. I abhor the abuse of the “general welfare” language. If the Founders meant what today’s liberals argue then public school and government health care and social security would have existed from day one. We can tell a lot about what they meant by looking at American society during the terms of the first handful of presidents.

          1. Yeah, bring back slavery!

            1. Yeah, bring back slavery

              I’m doing my best, k-y.

          2. “Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated.” ? Thomas Jefferson

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

            What the Founding Fathers meant by the word “welfare” bears little resemblance to its common use today and in any case, none of them intended it to mean anything like Social Security or Medicare. In fact, in 1794, when Congress appropriated $15,000 for relief of French refugees who fled from insurrection in San Domingo to Baltimore and Philadelphia, James Madison stood on the floor of the House to object
            saying:

            “I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents.” ? James Madison, 4 Annals of Congress 179, 1794

            Some Progressives are aware of this and blithely lie simply to have a useful cudgel in argument. Others have zero knowledge of the Constitution and reach for any handy phrase as a useful cudgel in argument. In either case, the result is the same and the motive is the same.

      2. Them there’s a lot o’ big words fer a Texas boy. You shure you ain’t onna them there librals? We don’t take kindly to them folks round these here parts.

        1. “We don’t take kindly to them folks round these here parts.”

          You defnitly wanna keep them folks away from yer parts.

      3. Not holding my breath on this one, however.

        Yeah, me neither.

  14. the Supreme Court cautioned against the temptation “to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power”

    Of course, that was 1995; we now live in *interesting* times in which (props to Oscar Wilde) Congress and the Supremes can resist everything except temptation. However, we will see fair resistance to the temptation in question throughout this year.

  15. If it gets struck down, they’ll just bounce back with a tax based system. We’ll all have a new payroll deduction that pays for our care and all of the free riders too.

    1. I think more likely is a refundable tax credit for carrying insurance, wiht a corresponding increase in the income tax. It creates the same economic incentives, but now its not a “mandate” or a “fine”.

      Surprised they just didn’t do that from the get-go, and never have to admit to mandating people to get coverage.

      Just like the home mortgage deduction isn’t a mandate to buy a home, the health insurance tax credit wouldn’t be considered a mandate to buy insurnace. But it would still have the same exact economic impact.

      1. Obama promised he wouldn’t raise taxes…soooooo…

      2. What the hell do they know about economics? 🙂

    2. Assuming it gets struck down, I don’t think congress has the stones to go through it all again. Hopefully the dems won’t have nearly enough members. We’ll probably have to live with the tan taxes and lifetime limits interference in insurance markets, but I don’t think a universal coverage plan will survive a second attempt.

  16. As long as states accept federal funding, in any form, they are subject to the Commerce Clause. Hence, if Idaho is challenging the New Federal Health Care Law, it efforts will fail, since the state receives federal funds in some manner.

    1. “As long as states accept federal funding, in any form, they are subject to the Commerce Clause”

      The mandate is on the individual citizen – not the state.

      1. state still has to enforce the law. If it refuses to cooperate, the government’s only recourse is to use federal enforcers (FBI, army) which is impossible. So their stick to hit the states with is highway funding. The only other option is threat of actual force (Civil War) which I know Obama would back down from.

  17. Thanks, Jacob, for a great article.

  18. Fucking trolls are up early.

  19. Chad is right. Health insurance was created by associations (teachers) who paid hospitals a yearly fee for health care. It was uncommon until federal tax law made it attractive. A good analogy is fire protection: fire-fighting companies originally sold their protection to individuals who paid a fee. This was cumbersome and unreliable, but when government took over this function, making it universal and paid by taxes, it became efficient and useful. As for the Constitutionality of a mandate, most Federal functions are not specifically validated by the Constitution, but neither are they forbidden to the Federal Gov’t. Modern life is incredibly more complicated than life in the 18th C., and requires more complicated solutions. Two consequences of the mandate being thrown out: the Congress could use its usual incentive, requiring states to adopt mandates or lose federal funding. All the states nurse at the federal teat, so this is as effective as a federal mandate. For those states that could opt out of a mandate, with the rest of the law remaining in effect, insurance premiums would skyrocket. Do these AGs think they would get the thanks of a grateful public?

    1. The problem dipshit is that to make mandatory health insurance work to along with eliminating the bar on pre-existing conditions, is that it has to be “mandatory”. This really isn’t mandatory because, thanks to community rating, it will cost less for young, healthy people to pay the fine than it will to buy insurance. And since you got rid of the pre-existing condition exclusion, they have no motivation to buy insurance. So, the insurance pool is going to be much older and sicker. Rates are going to sky rocket under Obmacare.

      This bill is designed to raise rates and destroy the private health industry. It is not designed to do anything but that.

      1. Yup. When the insurance industry fails at the hand of government intervention our leaders rulers can proclaim that it was a failure of the free market, and the only solution is nationalization.

        Which, of course, was the goal all along.

        1. That and driving the deficit so high that the only alternatives will be bankruptcy or tax rates the likes of which God has never seen.

          1. My guess is that they’ll inflate their way out of debt.
            I expect minimum wage by 2030 to be six figures… an hour.

            1. Maybe. But their first choice is to tax. That is what the deficit commission is all about. It will offer a sane, bi partisan way for the rest of the country to pay for the Democrats’ looting.

            2. Make that 2015.

        2. The insurance industry will not fail, it will simply become another ‘utility,’ a government-sponsored monopoly which charges what the government says, pays out what the government says, applies the administrative costs the government says to, covers what the government says to and earns a profit specified by the government.

          This was the substance of the discussion during the eighty or so face-to-face arm-twisting sessions President Obama had with the hold-out, die-hard leftists clamoring for a public option. Obama ‘splained to them, “This IS the public option dummy!”

          So, the insurance industry winds up another gov’t-run (essentially) utility with guaranteed customers and profits — is it any wonder they backed the plan?

          There is no way the Dems will allow the insurance industry to fail because doing so will show the ultimate fallacy of this law.

          1. So essentially the insurance industry becomes another government entity or “corporation” – the executives of which are not subject to popular vote. Nice.

      2. John wrote:
        “…it will cost less for young, healthy people to pay the fine than it will to buy insurance. And since you got rid of the pre-existing condition exclusion, they have no motivation to buy insurance. So, the insurance pool is going to be much older and sicker. Rates are going to sky rocket under Obmacare.

        This bill is designed to raise rates and destroy the private health industry. It is not designed to do anything but that.”

        Yep.

      3. I find it interesting that the Fine/Tax is also a revenue generator for the Gov’t. Instead of the money going to the Insurance company (which will need it under this BS law) it will go into the Gov’t coffers.

    2. “As for the Constitutionality of a mandate, most Federal functions are not specifically validated by the Constitution, but neither are they forbidden to the Federal Gov’t. ”

      The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

      It’s really not all that difficult to understand.

      1. It is easy to understand if rights exist and the government protects them.
        In that scenario the government can only do what it is authorized to do, while the people can do anything that is not specifically forbidden.

        But there are those who think feel that all rights originate with government.
        In that scenario the people can only do what they authorized to do, while the government can do anything that is not specifically forbidden.

        That second road is where we are headed.

    3. “As for the Constitutionality of a mandate, most Federal functions are not specifically validated by the Constitution, but neither are they forbidden to the Federal Gov’t.”

      Yes they are. Please see the 10th Amendment:

      “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

      1. Spartacus beat me to it.

        1. Neener Neener!!!

      2. Russ R. – The 10th is one of my favorite Amendments! Robert Bork called it “an ink blot on the Constitution.” The problem is that the Court has never known what to make of this amendment, so they have generally left it alone. “Promoting the general welfare” is delegated to the Federal gov’t, so it is hard to see how you could use the 10th to prevent a health insurance mandate. The only Court decision to use this amendment as rationale for a decision, to my knowledge, is Roe v. Wade – and the rights reserved are to individuals, not the states.

        1. Well, Bork was wrong. Following Bork’s statement, BTW, there has been a fairly significant amount of literature written on the 10th Amendment. So it isn’t as if the Court has nothing to draw on.

        2. “Promoting the general welfare” is delegated to the Federal gov’t,

          Sorry, disagree with you there. That’s not a delegated power. That’s the objective for which powers are delegated.

          Read it: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

          If I give you authority to take a specific action to achieve an objective, that does not give you authority to undertake any other actions under the rationalization that they will also achieve the objective.

          1. Especially if there is little proof the action actually SUPPORTS the objective.

          2. You might want to look at Article I, section 8:

            “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States”

            This is the general welfare clause not what is in the preamble.

            1. Same principle applies. The delegated power is taxation, not “general welfare”, which this isn’t in the first place. And according to Obama, in defiance of all logic, it isn’t a tax, so that clause wouldn’t apply anyway.

              1. …according to Obama, in defiance of all logic, it isn’t a tax, so that clause wouldn’t apply anyway.

                Mere Mortal! You do not comprehend the transcendent mysteries! It is a tax and yet not a tax, both at the same time – just as I am a mortal and yet a god!

            2. the Article goes on to enumerate exactly what such powers are. I didn’t see anything which allowed the government to compel individual purchases.

              And what about Due Process, while we’re at it?

              1. I was just attempting to correct Russ R. He made the same mistake alot of people do, thinking the general welfare clause is in the preamble when it’s really in Artical I, section 8.

                You are both correct, this legislation is not a tax and is not part of the enumerations.

                I personally think anyone using general welfare as an excuse for the legality of this legislation is woefully ignorant of what the Constitution allows.

            3. Madison and Jefferson on General Welfare

              “Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated.” ? Thomas Jefferson

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

              What the Founding Fathers meant by the word “welfare” bears little resemblance to its common use today and in any case, none of them intended it to mean anything like Social Security or Medicare. In fact, in 1794, when Congress appropriated $15,000 for relief of French refugees who fled from insurrection in San Domingo to Baltimore and Philadelphia, James Madison stood on the floor of the House to object
              saying:

              “I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents.” ? James Madison, 4 Annals of Congress 179, 1794

              Some Progressives are aware of this and blithely lie simply to have a useful cudgel in argument. Others have zero knowledge of the Constitution and reach for any handy phrase as a useful cudgel in argument. In either case, the result is the same and the motive is the same.

          3. And that’s the only mention of “general Welfare” in the constitution. And since it’s only in the preamble, is it even binding?

        3. Individual entitlements don’t promote the general welfare to begin with. You missed fully half of the phrase “general welfare”.

          If it’s intended to help the poorest people in our society, it might be nice, but it ain’t “general”. Think “public goods”.

    4. No, Chad is wrong. Health insurance in the U.S. did not start with teachers or any other association of workers. The first kind of health insurance in the U.S. was open to all comers and was for railroad accidents and the like.

      As for private firefighters, it became public largely public because municipalities wanted to use firefighting as a system of patronage; the most voluntary system of firefighting in the U.S. stood in the way of this. As municipalities, counties and states take on more and more work private firefighting has become more popular, system the public system of such is so inefficient.

      Modern life is incredibly more complicated than life in the 18th C., and requires more complicated solutions.

      Which the federal government is rarely if able to provide in any useful way. Most of what the government is about is rent seeking.

      1. Amen to the rent seeking comment…sure has been a lot of that in this whole debate.

    5. “This was cumbersome and unreliable, but when government took over this function, making it universal and paid by taxes, it became efficient and useful.”

      Really? “More efficient and useful?” There are countless residents of major cities that would beg to differ about that.

      “Modern life is incredibly more complicated than life in the 18th C., and requires more complicated solutions.”

      Is life really more complicated, or are we MAKING life more complicated because we refuse to accept reality? I think it’s the latter.

      1. The number of pages of federal regulation has increased more than ten-fold since the 1950’s.

        So exactly why is modern life so much more complicated?

      2. …are we MAKING life more complicated because we refuse to accept reality?

        I believe making things more complicated than they are is called “nuance” – otherwise known as obfuscation. That is to say, bullshit. 🙂

    6. “Modern life is incredibly more complicated than life in the 18th C.” [citation needed]

      I tend to think the 40 hour work week is pretty straightforward. Subsistence farming? Now THATS complicated.

      1. On the one hand, you are conflating length of time spent working with type of work performed. On the other hand, you are confusing complexity of task with level of effort required.

        You suck on both hands.

  20. Nicholas Martin – Great post! This 2004 Reason article is great justification for the health bill just passed. And to think Reason championed it early on! As the World Turns…
    https://reason.com/archives/200…..urance-now

    1. If I had a nickel for every time Ronald Bailey was wrong, I could pay for everyone’s health care myself.

    2. Read the article carefully. Mr. Bailey is NOT suggesting anything like ObamaCare.

      1) He advocates REPLACING Medicare, Medicaid and sCHIP. ObamaCare is leaving them in place.

      2) He advocates requiring citizens to purchase “a basic high-deductible catastrophic health insurance policy from a private insurance company”. Again, that’s not ObamaCare. You would have coverage for true medical emergencies. You would not have coverage for routine office visits and the like.

      The best insurance reform we could have would be to convert health insurance back into “insurance” instead of the health care “service plan” it is now.

      1. The best insurance reform we could have would be to convert health insurance back into “insurance” instead of the health care “service plan” it is now.

        Amen!

    3. Whether Ronald Bailey advocated it, Ronald Reagan, or Ronald McDonald it makes absolutely no difference.

      Any so-called libertarian who loses him mind long enough to write the phrase “government should require you to buy” automatically sides with Progressives (at least on that issue), and is therefore wrong.

      I only hope Mr. Bailey recovered from his mental illness.

  21. “Yet a law that compels people to engage in an intrastate transaction plainly does not fit within the original understanding of the Commerce Clause…”

    1. It also does not jibe with the traditions of liberty on which this country supposedly was founded.

  22. I my humble opinion I believe it to be against the spirit of freedom delegated to the “individual” vis-a-vis the “Bill of Rights” for the Government to compel its citizens, in this instance, to obtain health “insurance” particularly when the government has failed to provide a “public option”. I believe any fair minded Court will find that the Congress has overstepped its bounds in mandating citizens to “purchase” insurance from a third party. My contention is that every citizen should have “Healthcare” not “Health Insurance”.

    1. What if no one wants to provide healthcare?

      1. We’ll just reinstate the draft.

  23. Supporters of ObamaCare say such legislation, which more than 30 other states are considering, has no force, since the Constitution makes congressional enactments “the supreme law of the land.” But that is true only when federal laws are authorized by the Constitution, and the individual health insurance mandate is not.

    Of course, if the federal law is ruled to be not authorized by the Constitution, then those state laws are redundant because the federal law would be overturned.

    1. Federal laws are not “authorized” by the Constitution. They can be found to be in violation of the Constitution, which is very different. Usually such violation is of the rights of individuals guaranteed by the Bill of Rights. Protection of States against Federal legislation is much rarer. Scotus did rule some years ago that the state employees of Georgia are not covered by federal anti-discrimination legislation, so the woman who was underpaid for the same job as her male colleagues was prohibited from suing in federal court. Perhaps the Court will find that state employees can be exempt from a federal mandate – but I think they all already have insurance!

      1. Only because the plain language of the Constitution has been turned on its head.

  24. Isn’t there a 13th Amendment violation involved in the government mandating people to purchase health insurance coverage?

    1. The SCOTUS has upheld the draft. More than once.

      If they won’t call involuntary military service involuntary servitude, we’ve no hope that they will make the call on purchase mandates either.

  25. so, smarty pants, then why hasnt someone used the same logic on SS and unemployment insurance?

    1. Because those are essentially income taxes which are explicitly allowed by the Constitution. Sadly, the feds can tax you all you want. But no where does it say they can force you to buy a private sector product.

      Just because both unemployment insurance and health insurance use the word “insurance”, doesn’t mean they are the same thing. Keep trying though. I know life is hard being stupid. But maybe you will get smarter someday.

      1. Ok, so why couldn’t the Feds just offer a refundale tax credit for carrying insurance, while at the same time raising everyone’s income taxes by the same amount? similar to a home mortgage deduction, which no one claims is a mandate to buy a house.

        1. They could probably get away with that.

          1. Obama…tax…vow not to…work around…

    2. Because those are essentially income taxes which are explicitly allowed by the Constitution. Sadly, the feds can tax you all you want. But no where does it say they can force you to buy a private sector product.

      Just because both unemployment insurance and health insurance use the word “insurance”, doesn’t mean they are the same thing. Keep trying though. I know life is hard being stupid. But maybe you will get smarter someday.

  26. If its struck down, all they will do is rewrite it to make it a refundable tax credit for carrying insurnace, and raise overall rates to make up the difference. No one claims the home mortgage deduction is a MANDATE to buy a home; or a child credit a mandate to have a child, etc, etc….there are a hundred ways around this if the courts determine a straight out fine is unconsitutional.

    1. They could. Someday. But it won’t be fo a very long time. None except the hardest core libs will ever want to touch this one again for many years. That’s why they had to do it right now, becaus they know their chance is about to be gone. They admitted as much.

      But yeah, they probably could get away with it, and probably will someday if this gets shut down the status quo doesn’t change at all.

  27. “so, smarty pants, then why hasnt someone used the same logic on SS and unemployment insurance?”

    While I think both of these are probably unconstitutional, they are an order of magnitude different.

    Congress has the Constitutional authority to tax income, but no authority to compel individuals to purchase goods or services from third parties.

    1. Congress has the Constitutional authority to tax income…

      Yes, and it has that authority only because of the 16th Amendment passed during Wilson’s presidency.

  28. Was it not the conservative health insurance lobby that fought hard for the mandate that everyone buy insurance? Conservatives were ok to spend trillions in Iraq (nothing to do with 9/11), trillions on Bush tax cuts- welfare for the wealthy, now we have a law protecting consumers against health insurance abuses, and conservatives are trying to intimidate everyone else by carrying guns and breaking the windows of our congressmen? Why should the USA be the ONLY modernized country in the world without any form of health care protection?

    1. First, we didn’t spend trillions in Iraq. The Obama stimulus package would almost pay for the entire Iraq war. And Obama deficits in 14 months are larger than Bush’s for 8 years wars and all. At some point a difference in quantity becomes a difference in kind.

      Second, tax cuts are not spending. To say that they are is to say that the government owns everyone’s income and they just let us keep some of their money when they don’t tax us. You may have such a totalitarian view of society (you are a social Democrat after all) but the Constitution and the country does not.

      “now we have a law protecting consumers against health insurance
      abuses,”

      What abuses would those be? Actually having to purchase insurance before something bad happens? Tell you what, while we are at it, lets get rid of the pre-existing coverage exclusion for life insurance. I mean millions of people die every year and many of them can’t afford life insurance. Their families should just be able to go buy one post death and collect the money. That makes about as much sense as what you are saying.

      “and conservatives are trying to intimidate everyone else by carrying guns and breaking the windows of our congressmen?”

      That is so ignorant as to be beneath response. I would call you a troll. But the last year and a half has taught me that no liberals really are this stupid.

      1. But the last year and a half has taught me that no liberals really are this stupid.

        I think you missed a coma there after the word “no”, John. Leastways, I hope you did. 🙂

    2. Let’s address each statement on it’s own.

      Was it not the conservative health insurance lobby that fought hard for the mandate that everyone buy insurance?
      What makes you think the health insurance lobby is conservative? Is it because they are wealthy? Check to see how much they gave to Democrats vs Republicans in the last two elections before you jump to conclusions. They want everyone to buy their product and Obama let them write the bill.

      Conservatives were ok to spend trillions in Iraq (nothing to do with 9/11), trillions on Bush tax cuts- welfare for the wealthy, now we have a law protecting consumers against health insurance abuses, and conservatives are trying to intimidate everyone else by carrying guns and breaking the windows of our congressmen?
      The Iraq war was a mistake and so is this bill…what is your point? This new law was written by insurance companies so what makes you think anyone is all of a sudden protected from their abuses, whatever those are? When did guns become intimidating unless you’re a giant pussy? Do you have a citation that shows where conservatives have broken the windows of congressmen?

      Why should the USA be the ONLY modernized country in the world without any form of health care protection?
      Because we don’t want to go bankrupt? Why shouldn’t we be the one remaining country where people are free to choose how to live their lives and if they want something (health insurance, candy canes, iPods, etc) they pay for it themselves?

      1. Why shouldn’t we be the one remaining country where people are free to choose how to live their lives and if they want something (health insurance, candy canes, iPods, etc) they pay for it themselves?

        Uh, because it would be so much nicer if all countries were that free? I know what you are really trying to say though. 😉

    3. “Why should the USA be the ONLY modernized country in the world without any form of health care protection?”

      Uh, the USA has health care protection. It’s called doctors, and hospitals, and health savings accounts, and health insurance, and paying out of savings or on credit, and ….

      You mean “Why should the USA be the only modern country where X isn’t forced to pay for Y?”

      Apart from the fact that this occurs (see SS and Medicare, etc)…

      Well, ignoring for the moment that the Constitution guarantees liberty, IT IS IMMORAL TO FORCE X TO PAY FOR Y.

      That’s why.

      That, no doubt, is not the answer you were hoping for.

      Now I would like to have Progressives answer a question. Why do they believe it is MORAL to FORCE X to pay for Y’s [food/rent/insurance/fill in the blank]?

  29. It has been proclaimed that HCR’s provisions that require individuals to carry health insurance violate the Constitution because “at no time in our history has the government mandated its citizens buy a good or service.” The truth, however, is that the Second Militia Act of 1792, required a significant percentage of the U.S. civilian population to purchase a long list of military equipment.

    “[E]very citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and….”

    http://www.constitution.org/mil/mil_act_1792.htm

    This Act became law only a few years after the Constitution was ratified, in President George Washington’s first term. Many of the Members of Congress who voted for the Act also were members of the Philadelphia Convention that wrote the Constitution. In other words, they probably knew a little bit more about the Constitution than the various individuals who are saying that the HCR mandate is unconstitutional.

    1. Different law. First, that was national defense not commerce. The government has much greater power in the area of national defense. Second, it wasn’t the entire society. It was only those conscripted. The draft is certainly constitutional. Again that relates to national defense. Nice try though.

      1. To be textually clear. From Article I, Section 8:

        The Congress shall have power[…]

        To make rules for the government and regulation of the land and naval forces;

        To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

        To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

      2. The draft is certainly constitutional.

        No, it is not, irregardless of the dishonesty and sophistry of SCOTUS in the last century. At any rate the proposition has been debated just about ever since the Constitution was adopted.

    2. Haha…that’s some pretty good research, never heard of that one….

    3. On the topic of militias, James Madison said:

      “Besides the advantage of being armed, it forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. The governments of Europe are afraid to trust the people with arms. If they did, the people would surely shake off the yoke of tyranny, as America did. Let us not insult the free and gallant citizens of America with the suspicion that they would be less able to defend the rights of which they would be in actual possession than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors.”

      Being that he is the “Father of the Constitution,” it would seem that stringing up these fucks for their shitty individual mandate (and heaps of other infringements on our liberty) is wholly constitutional.

      1. Where do I sign up and can I bring a better gun than required by the Militia Acts?

        1. I’ll start a Facebook page. And unless I can find some legal standing to do otherwise, we’re going to have to do this old school- blunderbusses only.

          1. As long as I bring a blunderbuss, I should also be able to bring any other ordinance, right? I mean, it just states what I have to bring. It doesn’t say “leave everything else at home.”

            1. I suspect that there’s already a Facebook page for WMD enthusiasts. In any case, it sounds like at least one of you is on the way to receiving the Darwin Award.

  30. While I understand the focus on the individual mandate, there is a broader reason why this legislation is unconstitutional. The commerce power, like the taxing power, is inherently limited so that it cannot be used to destroy state sovereignty and turn states into mere administrative units of the federal government. See 66 U. Mich. Law Rev. 750 (1966). If there ever was a case that demonstrates this, this is it. This legislation is so far over the line, that it should be obvious that it cannot withstand constitutional scrutiny. The end does not justify the means.

  31. You voted for Bob Barr in 2008, so you share responsibility for electing Obama and for this radical lurch further into statism.

    Thanks.

    1. Bullshit, Steve. NO party owns votes.

      Besides, if you don’t believe we’d still be lurching towards statism with McCain at the helm, you’re a damned fool.

    2. That’s like saying that college students who smoke weed are responsible for the murders in Juarez.

      The people who voted for Obama are responsible for electing Obama. Period.

  32. John,
    I did not call you stupid, but thanks for the compliment. Fact, 5 democratic offices in the last week were attacked with bricks. Fact, a gun carrying rally was just scheduled in April (Waco anniversary)at the VA state park closest to DC where guns are allowed to be carried in public. Fact, Stimulus saved tens of thousands of police, firemen and teacher jobs, among thousands of other benefits- so you are saying that spending the same amount in Iraq, for one man’s retaliation is reasonable?
    Not one conservative complaint about all the money spent in Iraq after controlling Congress for fourteen years? Fact, the Bush tax cuts (FIVE percent on the highest wage earners) took two trillion dollars out of the budget, and in its wake, the worst unemployment in 70 years. How did this supply side (his own father called it voodoo economics) work out for us?

    1. Hey dipshit –
      Not being a liberal does not make one a conservative.
      Opposing the nationalization of health care does not mean one supports Iraq, nor does it equate to support of the status quo.
      Opposition to Obama does not mean support of Bush.

      You see, some of us are capable of using our minds for things other than justifying our emotions.

      1. Ten bucks says union thugs were hired to break those Democrat office windows… which will be repaired by union thugs, thus continuing the circle of life.

        Any takers?

      2. But I want it! I want it, want it, want it! You stupid Bushie!

    2. “act, Stimulus saved tens of thousands of police, firemen and teacher jobs, among thousands of other benefits- so you are saying that spending the same amount in Iraq, for one man’s retaliation is reasonable?”

      It did no such thing. It propped up state and local governments for another year so they could pay state and local employees and pension benefits that are completely out of kilter with the private sector. Those jobs were not “saved”. All that it did was put off the inevitable reckoning that is going to come from the fact that the SEIU has essentially looted the country. We can’t afford to pay pensions for public employees that are that far out of whack to the private sector. That is why California, New York, New Jersey, and soon every other blue state in the country is going broke. The stimulus was sold as a “shovel ready Keynesian stimulus”. It was no such thing. It was just a payoff to Democratic public employee unions.

      There have been hundreds of Tea Party rallies all over America and not one instance of violence, except for one. And that was in St. Louis last August when a group of white union thugs put a black man in the hospital while calling him a nigger. If you are so superstitious about firearms that you are frightened by the picture of one person with a weapon, that says more about you than anything else. And if you are so concerned about violence, why are not concerned about the SEIU racist beating in St. Louis?

      Lastly, “They did it to” is not an argument. Bush could have been another Stalin, and that would say nothing about the value one way or another of the Obama Presidency.

      And I will say it again, you are really are that stupid. You apparently think play ground taunts and logic count as adult argument. Well it doesn’t, at least not with people outside of the liberal echo chamber.

    3. Stimulus saved tens of thousands of police, firemen and teacher jobs, among thousands of other benefits

      My! But it’s so nice that the ruling class still has incomes. Who do you suppose is going to pay their salaries?

  33. Let me remind you this has been going on for years. We are bringing it to a halt. The harsh fact of the matter is when you’re going to pass legislation that will cover 300 American people in different ways it takes a long time to do the necessary administrative steps that have to be taken to put the legislation together to control the people.

    1. Yes John, we heard you say that on YouTube. No need to repeat it here.

      If you really want to be famous, go make a sex video.

      1. Eww. Not even Steve Smith would watch a Dingell sex video.

        Or would he?

  34. Jacob:

    Not buying health insurance is actually self-insuring. This is an overt act – not a passive one – which the federal government may regulate via an excise tax.

    * * *

    Do you really think that the courts will overturn this law? You cannot possibly be so foolish.

  35. I honestly don’t think most libs will care much if the individual mandate is struck down. It was put in there in the first place solely to buy off the insurance companies and give this thing a veneer of credibility and sustainability.

    If its struck, then one of the most unpopular parts of the law is gone, and all the parts that will destroy the insurance companies and hasten the imposition of single payer remain. If you’re a leftist, what’s not to like?

    1. Single Payer is the ultimate goal, agreed.

      Obama admitted as much, before he realized he has a chance to be president and needed to tone it down to more vague hopey-changey statements and leave the dirty work to others.

  36. I have to pay over 40% in total taxes (income, sales, state, excise, etc), for the benefits of living in a civilization, one with police, teachers, roads, rail, courts,etc. To expect the same of my wealthier counterparts is fair, not socialism.

    1. A big chunk of your 40% doesn’t go for “police, teachers, roads, rail, courts,etc.”. Instead, it goes to various wealth redistribution programs and the debt incurred to finance them on top of the “benefits of civilization” you list.

    2. Allen we had a wonderful civilization for nearly two hundred years were we paid much less than that. I used to live in Texas where we had no income tax and a very low overall tax rate. Now I live in Maryland where it is a tax hell. And you know what? The schools, roads and services were better in Texas. That is because Maryland is being looted by public employees and political cronies.

      You don’t pay 40% taxes to live in civilization, you dumb ass. You pay maybe 20% to live in civilization and the other 20% to allow politicians to steal.

      And you are right, it is not socialism, it is kelptocracy.

      1. “And you are right, it is not socialism, it is kelptocracy.”

        Can you be more pacific?

        1. “Kelptocracy” – When the nation is ruled by seaweed.

    3. You forgot trillions for Wall Street and the big banks, and the endless wars.

    4. I have to pay over 40% in total taxes

      Forty percent of what – your income or your wealth? If it’s income, I can assure you that you are paying much more than forty percent with all the various fees, permits, and business taxes passed along to you in the cost of the products you buy.

      If it’s forty percent of their wealth that you’d like to see the rich fork over, I’d have to say you might not like having to give up forty percent of what you own.

  37. I did say the mandate is a bad idea? Remember that it was brought on by the conservative health insurance lobby that wanted to increase its revenue base if it actually did what it is paid to do, pay for health care costs when people actually get sick?

  38. Not buying health insurance is actually self-insuring. This is an overt act – not a passive one

    Please give us an example of any non-action that you believe is not an overt act of some kind.

    Not buying health insurance = “overt act” of self-insuring.

    Not buying lunch = “overt act” of dieting, which, further, has an indirect impact on interstate commerce, thus justifying a federal mandate that every citizen buy lunch every day.

    Not buying a car = “overt act” of biking to work every day, which, further, has an indirect, etc.

  39. I think it is time that we all start collecting as many hand-outs as possible. If financial ruin is inevitable, let’s just get it over with.

    1. Hell, I agree. Grab as many goodies as possible.

      1. How do I stop pulling and get on this gravy train instead?

        Great T-shirt idea.

  40. I guess some of you are not up to date on the news yet. THis is where the politics of hate and intimidation get us ( I am guessing he is not an Obama supporter), you asked for proof-

    The Kansas City Star wrote this about the multiple vandalizing of Democratic offices.

    . . . on Monday, a former Alabama militia leader took credit for instigating the actions.

    Mike Vanderboegh of Pinson, Ala., former leader of the Alabama Constitutional Militia, put out a call on Friday for modern “Sons of Liberty” to break the windows of Democratic Party offices nationwide in opposition to health care reform. Since then, vandals have struck several offices, including the Sedgwick County Democratic Party headquarters in Wichita.

    “There’s glass everywhere,” said Lyndsay Stauble, executive director of the Sedgwick County Democratic Party. “A brick took out the whole floor-to-ceiling window and put a gouge in my desk.”

    Stauble said the brick, hurled through the window between Friday night and Saturday morning, had “some anti-Obama rhetoric” written on it.

    Vandals also smashed the front door and a window at Rep. Gabrielle Giffords’ office in Tucson early Monday, hours after the Arizona Democrat voted for the health care reform package.

    Over the weekend, a brick shattered glass doors at the Monroe County Democratic Committee headquarters in Rochester, N.Y.

    Attached to the brick was a note that said, “Extremism in defense of liberty is no vice” ? a quote from Barry Goldwater’s 1964 acceptance speech as the Republican presidential candidate.

    And on Friday, a brick broke a window at Rep. Louise Slaughter’s district office in Niagara Falls, N.Y. Slaughter, a Democrat, was a vocal supporter of the health care reform bill passed by the House on Sunday.

    Here’s more of what Vanderboegh said.

    “We can break their windows,” he said. “Break them NOW. And if we do a proper job, if we break the windows of hundreds, thousands, of Democrat party headquarters across this country, we might just wake up enough of them to make defending ourselves at the muzzle of a rifle unnecessary.”

    Vanderboegh told The Kansas City Star that the action was meant to “get everyone’s attention.”

    “What I was trying to get across was that people do not understand how on the edge of civil conflict this country is,” he said.

    I know, just another kook. This isn’t about the constant barrage of hateful lies the Republicans have spread since the moment Obama was elected . . . hell, since he got into the presidential race . . . hell, since Lee Atwater ran Bush I’s campaign. Naw. That has nothing to do with it. I’ll bet the guy is a Democratic plant. Right? Am I right?

    Keep denying it, guys.

    1. OK, you have a single individual who broke windows, which discredits the entire opposition to Obama.

      Does this mean that the group of union thugs who beat up Ken Gladney discredits all the support for Obama?

      1. They pass an unpopular bill without one vote from the minority through bribery and corruption and that is great. Some nut throws a brick and the entire opposition needs to be banned.

      2. +1, RC.

      3. No Dean, it only goes one way.
        That’s one of the nice things about being on the left, you operate by one set of rules and judge others by a completely different set of rules.

        So when a racist attends a Tea Party rally that means that everyone who ever attended a Tea Party is racist.

        But when it happens the other way it is an isolated incident.

        Life is so much easier when you don’t have to operate by the same rules that you set for everyone else.

    2. Following liberal economic principles, breaking windows is actually stimulating the economy. Just think of all the jobs that will be created to replace them!

      1. Especially public sector jobs.

    3. I am glad you’re scrutinizing random citizens more closely than you are the people who already wield way too much fucking power and still thirst for more.

      Anyway, wasn’t “Just another kook, it doesn’t mean anything” the same defense used when Obama’s radical associations kept cropping up? If it’s good enough for him, it’s good enough for me. I’m no racist!

    4. Denying what? That there are a few violent morons all across the political spectrum? Do a Google search on Mike Vanderboegh and you will find similar stuff going back 15 years, at least. Blaming Republicans for his actions is about as accurate as blaming Animal Liberation Front sabotage on Bob Barker.

    5. What’s to complain about?

      This is a jobs program.

      Breaking windows create’s jobs for the glass repair industry, don’t you know.

      This is merely a smaller version of big O’s $787 B stimulus bill – based on EXACTLY the same economic theory.

      1. Drat.

        Steve Nash beat me to it.

    6. …the constant barrage of hateful lies the Republicans have spread since the moment Obama was elected . . . hell, since he got into the presidential race…

      I guess all those epithets, insults, etc. uttered about George W. Bush and his administration over the last nine years by the likes of Michael Moore an the Hollywood crowd were just tokens of love, huh? Fssssptttttttt!

    7. Progressives have been creating the circumstances for a civil war since the 60s. (Yes, in one way or another for a century, but much more specifically for 40 years.)

      Hold down the lid, turn up the flame really fast and you can expect a few frogs to suddenly get wise and try to jump out of the pot.

      Progressives can not claim to be shocked at this when they continue to work to repress a free people by lies, chicanery, and outright violence of their own. (See SEIU at Tea Parties, any IMF meeting, global warming rallies, anti-Israel rallies, etc. etc.)

      You can expect many more of these acts.

      Am I wishing for that? No. I would much prefer that Progressive influence in media, education, and politics simply be peacefully neutralized by a populace that wakes up to what has been happening the past century.

      But I’m not surprised, and I’m not necessarily going to condemn those who engage in violence against criminals like Democratic politicians when the law has become the oppressor.

    8. Progressives have been creating the circumstances for a civil war since the 60s. (Yes, in one way or another for a century, but much more specifically for 40 years.)

      Hold down the lid, turn up the flame really fast and you can expect a few frogs to suddenly get wise and try to jump out of the pot.

      Progressives can not claim to be shocked at this when they continue to work to repress a free people by lies, chicanery, and outright violence of their own. (See SEIU at Tea Parties, any IMF meeting, global warming rallies, anti-Israel rallies, etc. etc.)

      You can expect many more of these acts.

      Am I wishing for that? No. I would much prefer that Progressive influence in media, education, and politics simply be peacefully neutralized by a populace that wakes up to what has been happening the past century.

      But I’m not surprised, and I’m not necessarily going to condemn those who engage in violence against criminals like Democratic politicians when the law has become the oppressor.

  41. It’s important to note that the mandate requires you not only to purchase insurance but to purchase insurance that meets a minimum level of coverage as determined by the HHS Secretary.

    Those of us who just buy major medical with high deductibles are gonna be totally screwed.

    I expect to pay 2-3 times more than what I’m paying. That’s if I even continue having insurance.

    Let the health care police come after me.

    1. So what does a practical, self-employed person do? Is there such a thing as a high-deductible international health insurer, who will pay for you to get surgery/treatment in Singapore or some place like that?

      1. So what does a practical, self-employed person do?

        Move to Costa Rica?

        1. Go ahead and move, but your money and your property will stay here. They’ve already seen to that.

          1. I’m pretty sure one day we’ll look back and realize that losing all our money and whatever property we couldn’t carry on our backs was a small price to pay for escaping the USSA with our lives and dignity, relatively speaking.

            1. We’re prepared to move if it comes to it. We own propery in China.

  42. Uh oh, looks like we have a flawed constitution.

  43. The argument is stronger. Its not about the privilege of living in the United States. Its about the privilege of living in a particular state as Congress declined to eliminate the ban on the interstate purchase of health insurance. I certainly would not bet money on what Anthony Kennedy might actually do, but the logic certainly seems compelling. If Congress can do this, then it simply has plenary police power, something that is absolutely contrary to the intention sof the founders.

  44. The attacks against congress happened in five different states. Vanderboegh is the only one with the courage to speak publicly about it.

    Look, I dont like the HC insurance mandate, but the new law does a lot to protect us against health insurance abuses, pre-existing conditions, denying coverage once someone gets ill, HC for uninsured children, and many others.

    My point is, this is a democracy. If you do not like it, elect 289 congressmen and 67 senators in 2010, or a new president, 218 congressmen and 60 senators in 2012. Thats a democracy. Not public displays of carrying guns and vandalizing congress offices in five states to intimidate the rest of us.

    1. No it is not a democracy.

      It is a Constitutional Republic.

      The only things that can legitimately be decided democratically at the federal level are those that fall within the scope of the powers delegated to the federal government by the text of the Constitution.

      Mandating the purchase of health insurance isn’t one of them.

    2. …this is a democracy>

      The Constitution established a republic. You will not find the words democracy or democratic anywhere in its text – read it and see. You will, however find the word republic.

      1. And I see that Gilbert Martin is a much faster typist than I. 😉

    3. My point is, this is a democracy.

      I’m going to go out on a limb and guess you failed civics.

      1. Unfortunately, he passed civics with straight A’s.

        1. Subtle, but probably true.

    4. Vanderboegh is the only one with the courage to speak publicly about it.

      If you can’t point to a citation for your claim, it’s simply innuendo.

      I could claim that twenty wavering democrats got visits from some burly guys who helped persuade them but none have had the courage to speak out. Now prove me wrong…

    5. Alan,
      If you believe your statement about this being a Democracy how do you reconcile the fact that not every Congressman who voted for this had the support of their constituency? Even if you don’t believe the national polls that came out against this law, there were still individual states that had majorities opposing it. This law was not the will of the people!

    6. “Not public displays of carrying guns and vandalizing congress offices in five states to intimidate the rest of us.”

      Hm. Are you intimidated?

    7. “My point is, this is a democracy. If you do not like it, elect 289 congressmen and 67 senators in 2010, or a new president, 218 congressmen and 60 senators in 2012.”

      Utterly revolting rationalization. That we have a democratic system of electing representatives does NOT imply that they can do anything they damn well please – and that goes for all of them D, R, or otherwise.

      If they act like tyrants, they should expect rebellion.

  45. Nice try guys, but?
    All Congress and the Prez would have to do ? assuming the SC would find the original insurance mandate unconstitutional (doubtful at best) – is just reword the legislation so that everyone has to pay an “indigents’ health care support tax”, but also allow those with health insurance to opt out of paying the tax. It’d be the same effect as the mandate without the “mandate to buy” language. Since the federal government already provides financial assistance to health care in a variety of ways, it therefore has a legal interest in such a tax.

  46. KO has actually been pointing out the tea party racist angle for months. He has shown many many videos, and they all have two things in common, an all white audience in the videos, and many public signs designed to intimidate those that think differently.

    1. KO is just jealous because he has no audience, all white or otherwise.

    2. He has shown many many videos, and they all have two things in common, an all white audience in the videos,

      That’s funny – I’ve seen many, many videos showing plenty of non-white folk at Tea Party events.

      many public signs designed to intimidate those that think differently.

      Then I suggest you unbunch your panties and run away home. You are obviously not suited to engaging in public discourse with a free people.

    3. T.F.* Olbermann is the Michael Savage of MSNBC.

      * T.F. stands for That Fuckstain.

    4. KO that anti-hispanic, anti-semite? That guy’s a douche bag.

      1. I’m sorry… I left out anti-asian and sexist!

    5. Michelle Malkin is white? Walter Williams is white? Thousands of descendants of India, China, and a dozen other such places are white?

      Who knew ‘white’ meant: “anything I say.”

  47. Alan, what you’ve just said is one of the most insanely idiotic things I have ever heard. At no point in your rambling, incoherent response were you even close to anything that could be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.

    1. I like this thought, and I’m going to use it frequently (changing the name to fit the troll, of course!)

    2. A simple ‘wrong’ would have been fine…

  48. The issue is, when the leaders act with anger hate and rage, the followers act in the same manner. This happened in the 1960’s when the liberals were in control of DC, and how many assassinations occurred? When we were lied to about going to war in Iraq, did any of us who disagreed threaten our elected officials with violence?

    1. My God Allen, you are a freaking font of ignorance. First, if you want to talk about violence and intimidation, you might try reading about what happened on college campuses in the 1960s. Go read about Obama’s buddy Bill Ayers and the days of rage and what happened in Chicago and Columbia University.

      Second, you fucking moron, and listen closely because I am only going to say this once, Lee Harvey Oswald was a committed communist who once defected to the USSR and killed Kennedy because of his anger over Kennedy’s treatment of Castro. Sirhan Sirhan was a Palestinian militant. Malcolm X was murdered by the Nation of Islam. The only racist assassination that happened was MLK, who was killed by a lone nut. And also don’t forget the string of murders and violence that happened thanks the Black Panthers.

      Most of the violence in the 1960s was left wing violence. At least try to learn something. We don’t have time to keep giving you history lessons.

      1. Your facts don’t intimidate me! Well, actually, they do.

        I AM INTIMIDATED HERE, YOU GUYS!

      2. Alan is a prime example of someone who truly believes that the process of rationalizing his emotional responses equates to actual thought.
        Because everything he thinks is based upon what he feels, he assumes that it works that way with everyone.
        That is why he and those idiots like him must attribute what others do to be motivated by emotion, because everything he does is motivated by emotion.
        That someone can have a thought process that is not initiated by an emotional response is a concept he and others like him are unable to comprehend.

        1. Feel good politics. I have always seen that as a hallmark of the left.

          1. “Feel good politics. I have always seen that as a hallmark of the left.”

            They certainly don’t have a patent on it. Many on the Right do the same thing.

    2. “When we were lied to about going to war in Iraq, did any of us who disagreed threaten our elected officials with violence?”

      No you just ran around demanding that the entire exectutive branch be thrown in jail for war crimes and jumped up and down like monkeys yelling BushHitler. And BTW, I assume you think Obama is a war criminal to for not closing down GUITMO and not ending the war in Iraq right? Or does the fierce moral urgency only happen when someone from the other team does it?

      1. “No you just ran around demanding that the entire exectutive branch be thrown in jail for war crimes”

        And a bunch of them are still agititating for it.

    3. The issue is, when the leaders act with anger hate and rage, the followers act in the same manner.

      Alan has a point here. Last summer, the White House urged ObamaCare supporters to “hit back twice as hard”, and within a few days the SEIU had beat up Ken Gladney.

    4. Funny how violence by a small group of individuals is always evil (no matter the circumstances or motives involved) but continuing, massive-scale coercion for generations that violates individuals rights ‘nicely’ by lawful means is perfectly ok.

      The mind of a Progressive. It’s a wondrous thing.

  49. More intimidation, your words, your anger, proving my point. My point, supported by facts.

    1. supported by facts

      You keep using that word. I do not think it means what you think it means.

      1. He read about it on KOS. It must be true.

      2. It means he is incapable of original and independent thought.
        By “fact” he means someone else said it first.
        Everything he says can be documented as having a source other than him.

        He is a trained animal, able to save and regurgitate information, but unable to process it and arrive at in independent conclusion like a sentient human being.

    2. HELP! I AM INTIMIDATED!

      1. We already know that.

        That’s why you keep squealing like a frightened schoolgirl.

  50. Keeping my jumbo frank in my britches affects the supply and demand of/for the wang, don’t it? How should the government react?

    1. If you ask most men whether they would have free insurance or get laid, I’m pretty sure a lot would go for the latter option. That suggests to me that fucking is a fundamental human right — not merely a negative right, but a positive one. That so many men cannot get regularly laid in our society belies our status as a civilized nation. We must pass a law requiring that all women be conscripted to perform sex work on a regular basis, until no man in this nation is reduced to the indignity of jerking it.

      Moreover, it would be a betrayal of our noble goals to simply provide quantity of tail without quality control. We must help women achieve the body types most conducive to their task of providing sexual pleasure for men, with mandated calisthenics or cosmetic surgery, as appropriate.

  51. I guess LHO, JER and Surhan all acted alone? I said I agreed that the HC Insurance mandate was a bad idea, but there is a lot of good in the new law. I said the violence in the last week, and now on the page above, is bad for the US. A pervasive school of thought in our country that believes to attack at all costs. I said the conservatives had control of Congress for 14 years, increased the size of government exponentially, started wars based on lies that cost lives and money, and noone complained about the cost back then. I guess the physical attacks on Congress this week, and planned public display of firearms in VA is good for our democracy.

    1. Yes Lee Harvey Oswald acted alone. And 9-11 was the product of 19 radical Islamists.

      1. And Obama was born in Hawaii.

    2. Uhh, Alan, you weren’t hanging out here then, because we sure as hell were complaining about the cost. But I’m guessing that in your mind because we aren’t liberals we must be conservatives and supporters of Bush’s pushing our country off a cliff. Well, maybe we just don’t like being pushed off cliffs, regardless of who’s doing it…

    3. and once again, “They did it to” is not an argument.

      1. It is if you have the intelligence and emotional stability of a child.

    4. The sad fact is the Mandate is the only way this law will work. And that’s only if the young and healthy don’t opt for the tax instead. There is no way the insurance companies can continue to exist in the long term if they are forced to only insure the old and sick. I see a sharp increase in premiums over the first year. As I understand it, the tax will be levied depending on if you check yes or no on your federal tax return. I believe there will be a lot of people that will wait and see how much the tax will cost the first year before making a decision.
      And I want to be clear; I think the whole Mandate idea is unconstitutional. This law also fails the common sense test. Of course the far left has little idea how the world works so I am not surprised that they think this will work.

      1. …if the young and healthy don’t opt for the tax instead. […] I believe there will be a lot of people that will wait and see how much the tax will cost the first year before making a decision.

        I’m one of them. I’m young and relatively healthy, and the main question in my mind is whether I’d rather pay less with the fine (presuming it will be paying less, otherwise the dilemma is largely resolved) or whether I’d rather pay more, but with the peace of mind that at least yet another chunk of my money wouldn’t be going to the government for things I don’t want, need, or remotely care about.

        I do think most people will start buying into health insurance, though. Wish I didn’t believe so, but I do.

    5. and planned public display of firearms in VA is good for our democracy.

      Can’t be any worse than the New Black Panthers marching around in public with rifles – as they did in Texas several years back when demonstrating against the legal execution of some black guy. (BTW, they never seem to worry about white guys being executed.)

  52. This article says nothing about the auto insurance mandate, does that fall the commerce clause? their are many pressidents to support this bill.

    1. You can choose not to drive.

      Q: Why is Reason putting this out after the fact? It’s like writing about whether or not the Fox has the right to steal the chicken he just stole from the hen house after the Fox told you he was going to steal the chicken in broad daylight and you watched him do it.

      I am beginning to believe the head honchos at Reason are the caricatures of what many people perceive Libertarians to be…people who bitch about a lot but take no action because everybody but them is one the wrong side.

    2. The auto liability insurance mandate is done by states, not the federal government.

    3. And the auto insurance mandate comes from the state. If one of the blue states wants do this crap, have at it.

  53. “does not mean “Congress could constitutionally require every American to buy a new Chevy Impala every year.”
    Uh, I think Congress does think it can require you to buy a chevy.

    1. Yeah, well with the bailout, most of us will have bought one, and we wont even get to drive it…

  54. I have come to realize that Chad makes great arguments against nature. I think we should ban nature. That way, there would be no scarcity. You know, if we make a law, it makes it true.

    It is the typical fallacy of all economically illiterate people to believe that abundance is freedom. Ironically, free markets create the most abundance.

    Ban nature now!

    1. Dude, pass a law!

      Federal law supersedes the laws of the States, the laws of Physics, the laws of Nature, and of course the law of Supply and Demand.

      Laws are magic!

      All they require is good intentions and *POOF* they make things happen!

      1. If we pass a law against Human Nature we can get rid of this whole pesky freedom idea.

        1. Already done. It’s called the Drug War.

          1. I should have said “banning Human Nature”. More ironic. I agree there are a lot of laws against human nature like the Drug laws.

      2. Don’t forget super smart bureaucrats with big hearts pounding and beaming out of their chests, gushing out progressive love to all of society.

        Perhaps, the new Constitution of Progressivism would have 10 Commandments, too:

        1) Thou shalt not want. Other people pay for it.

        2) Thou shalt not work. Other people do that for you.

        3) Thou shalt not think. Other people do that for you.

        4) Thou shalt not be a businessman, but rather a public servant.

        5) Thou shalt give unto Caesar everything you have.

        6) Thou shalt breathe something other than CO2.

        7) Thou shalt use green technology.

        8) Thou shalt not be Caucasian.

        9) Thou shalt eat organic foods.

        10) Thou shalt covet thy neighbors’ goods.

        1. I’m pretty sure that progressivism runs counter to most or all of the original 10, so they may as well get something that works for them.

  55. Much of the opposition to the recently adopted Health Care Bill focuses on the alleged “mandate” for people to purchase health insurance or pay a tax collectible by the IRS, with the implication that it is a fine for nonpurchase enforceable by seizure of assets or imprisonment. The attorneys general of several states have sued to get that provision overturned, and several states are debating legislation to forbid the collection of such fines on their territories, among other measures related to it.

    The problem with most of these efforts is they haven’t read the Bill closely. It is indeed unconstitutional, but mainly for other reasons, reasons that apply equally to Medicare, Medicaid, Social Security, and the “Income Tax” on compensation for labor.

    Let’s examine what the language of the statute says:

    “‘(2) INCLUSION WITH RETURN.?Any penalty imposed by this section with respect to any month shall be included with a taxpayer’s return under chapter 1 for the taxable year which includes such month.”

    and further–

    “(2) SPECIAL RULES.?Notwithstanding any other provision of law?

    (A) WAIVER OF CRIMINAL PENALTIES.?In the case of any failure by a taxpayer to timely pay any penalty imposed by this section, such taxpayer shall not be subject to any criminal prosecution or penalty with respect to such failure.

    (B) LIMITATIONS ON LIENS AND LEVIES.? The Secretary shall not?(i) file notice of lien with respect to any property of a taxpayer by reason of any failure to pay the penalty imposed by this section, or (ii) levy on any such property with respect to such failure.”

    –seems exclude characterizing it as a fine, but only a tax on self-insuring.

    Consider those words carefully, and how they could or would be applied, and how the tax might be avoided.

    It is a longstanding principle of law that if there is no penalty for noncompliance with a law, it is a nullity, merely aspirational or rhetorical.

    The above words essentially mean the only way the IRS could collect would be by withholding money from a refund. But there is no withholding for true income, as from rents, interest, dividends, or capital gains, and one can reduce the withholding from compensation for labor by reducing the number of exemptions claimed on one’s W-4 form, leaving one to pay a small “tax” at the end of the year, but leaving the IRS no way to collect the penalty for not purchasing health insurance. Even if the IRS takes one to court and gets a judgment, such judgment will be effectively unenforceable under the above language.

    In other words, the proponents of the Bill were so concerned about avoiding grounds for a constitutional challenge that they gutted their own bill, making the entire scheme fiscally untenable, as though it weren’t untenable enough already.

    I see this leading to many good jokes on the late night talk and comedy shows.

    However, it will also be a joke on the above mentioned efforts by state AGs and legislatures, who may offer some political theater but no legal results, and probably look silly in the process. Their efforts are misconceived. What might work is my proposed Nullification Commission in each state. See http://constitution.org/reform…..llcomm.htm . Lawsuits and state legislative resolutions won’t work. Indeed, they are likely to make the situation even worse when they fail. This undertaking requires more strategic subtlety than has been exhibited so far.

    1. …but leaving the IRS no way to collect the penalty for not purchasing health insurance.

      That isn’t quite true – the IRS can collect it by having it deducted from any social security monies for which one is or might become eligible, even for as far back as ten years. It’s a little something they just recently altered in the statute of limitations.

    2. Correction:

      After “refund” add “or benefit”.

      “by reducing the number of exemptions” should be replaced with “by adjusting the number of exemptions”.

      Got in a hurry and neglect to proofread.

  56. Well I guess those States who have laws preventing individual mandates will make use of the “Empowering States to be Innovative” amendment and opt out of the Federal Plan.
    http://www.huffingtonpost.com/…..11748.html
    Simple as that.

  57. Hate to pop a bubble, but the commerce clause does not even factor into the individual mandate. It’s an income-tax power: buy insurance, pay less income tax. Don’t buy insurance, pay more income tax.

    It is EXACTLY that simple, and there is no real constitutional question.

    1. Dr. Randy Barnett, Prof. of Legal Theory at Georgetown, disagrees with you.

  58. They will also try to argue that instead, the taxing power allows the mandate. The theory is that there is simply a tax that is credited if you buy insurance. The problem is, the tax itself is essentially a poll tax – a tax on existence, creditable if you buy insurance. I would think that the mandate is also unconstitutional if shoe-horned into a tax analysis, as it is then an unconstitutional tax on human existence.

  59. This Constitutional argument has no merit – perhaps Mr. Sullum should consider reading more than two Supreme Court cases. I’d recommend he start with Heart of Atlanta Motel v. United States, where the Court held that Congress’ interstate commerce power extended to banning segregation in hotels. Interestingly, the losers in that case used the same argument as Mr. Sullum: that staying at a hotel was a “noncommercial activity.” They were wrong. So is Mr. Sullum.

    1. Mike Z – that hotel situation isn’t analogous at all. In that context, the proper analogy to the present one would be to levy a tax on all Americans who choose not to stay in a hotel. Or put another way, levy a poll tax on every American, and give a credit to those who stay in a hotel. I don’t think you have to argue that staying in a hotel isn’t commercial activity – the losers in that case presumably lost because their argument was ridiculous. The current question under the commerce clause is whether doing nothing is “commerce.” If it is, then the government can compel us to do anything it wants and jail us if we do not, and we have literally lost ALL freedom.

      1. It’s OK. Somebody told the leftbot that those cases were relevant, so he repeats it without consideration or examination despite the facile realization that there is no comparison between the two (except for those who already have in their hearts granted all power to our merdiful overlords). (Merdiful started as a typo, but it’s highly appropriate, so I’ll let it stand.)

    2. “that staying at a hotel was a “noncommercial activity.”

      Staying or paying for the use are two different ‘doings’.

      Desperate thinking there…

    3. Dr. Randy Barnett, Prof. of Legal Theory at Georgetown, has read many more than two SCOTUS cases and he disagress with you.

  60. Why did the man stop beating his head against the wall?

    It felt good.

    Those who will be getting healthcare for free, regardless the quality or cost to “others” is the heart of the problem.

    45-50% of working people don’t pay Fed Income Taxes. Their healthcare costs will be nothing, compared to the producers who earn higher incomes. Not much higher mind you as these intense costs will hit the middle class/Small Business owners, hard.

    The freeloaders are in the catbird seat on this one.

    That’s the set-up. The Dems have seen how it works in England, etc. Once people are getting this for free, try and take it away.

    We are so screwed we don’t even know it.

  61. 45-50% of working people don’t pay Fed Income Taxes.

    But they do pay employment taxes (FICA) based on their incomes!

  62. This is an emotional reaction by liberals? I am making this stuff up? You guys lost the election, deal with it – like we had to deal with Iraq (were liberals violent about it?). When you win the White House, majority in the House AND super majority in the Senate- repeal the HC laws. Or do we have to now go after the second amendment?

    Reps. Louise Slaughter and Bart Stupak have received death threats. A tea party participant published what he thought was Rep. Thomas Perriello’s home address and urged disgruntled voters to “drop by” for a “good face-to-face chat.”

    1. 1. I never supported the Iraq War. Try another nonsensical charge of hypocrisy.

      2. Winning a super-majority doesn’t mean you can steam-roll the Constitution.

      3. Yes, some liberals were violent about the Iraq war. But I don’t dismiss the intellectual merits of their arguments because a few of them can’t control their tempers.

      4. I doubt there’s a single well-known politician who hasn’t received a death threat. Not that liberals don’t engage in the same behavior.

      5. Liberals aren’t known for “dealing with it.” Remember all that rhetoric about Bush not being a legitimate President?

    2. “You guys lost the election, deal with it – like we had to deal with Iraq (were liberals violent about it?). When you win the White House, majority in the House AND super majority in the Senate- repeal the HC laws.”

      Ummm…you DO realize where you are don’t you?

      I’ll give you a clue; this isn’t a “right wing” site. In fact I can guarantee you a higher percentage of the readers here opposed the Iraq invasion BEFORE it occurred than Democrats in Congress. I also voted against W. Bush at every available opportunity, and I’m sure a good number of fellow Reason readers did the same. It hardly makes sense to come here and blame those here for the actions of a few disgruntled extremists who are probably as myopic as you are. Go back to the cheer leading section for the Blue Team so they can tell you which talking points you need to regurgitate next.

      1. I pointed out yesterday that the mandate was a bad idea, but the new law has important positive changes to health care. That comment was met with violent attacks ON THIS SITE. I then replied that the violence this week-on the steps of our Congress, a congressman being spit on, five democratic offices in five states being attacked, ten death threats, a congressman’s brother’s house being attacked, open gun rally in VA, all being egged on by Republican leaders-for example- Palin-restock an reload-cities displayed in crosshairs on HER WEBSITE. Leaders have responsibilities, repelicans have none. The more you say this is isolated, the more proof is there is more.

        1. you know who

          I’m not positive, but I have a pretty good idea who. Joe from Lowell, is that you?

        2. “That comment was met with violent attacks ON THIS SITE.”

          Nice distortion of language to make your point. How can an exchange of views on a website be violent (the first use) in the sense of the second use?

        3. I believe the website you’re looking for is childishdelusion.com. Your statements would be more pertinent there.

  63. But doesn’t every person on the planet “produce” the need for healthcare just by living. Everyone needs healthcare, cancer is really just the disease of living.

    1. “…cancer is really just the disease of living.”

      ‘Living’ itself is a disease. You suffer from it long enough, you die.

      1. ‘Living’ itself is a disease. You suffer from it long enough, you die.

        Disease is something which is inimical or destructive to life, so what you are saying is that “living” is inimical to life – or that life is inimical to life. Not very logical.

  64. RE: the purpose of the commerce clause —

    It was said by Chief Justice Marshall that it is a matter of public history that the object of vesting in congress the power to regulate commerce with foreign nations and among the several states was to insure uniformity for regulation against conflicting and discriminating state legislation. The clause is meant to ensure equal treatment of such commerce by the states, and not to interfere with or actually participate in and/or mandate such commerce.

  65. As long as we’re all agreed that all mandates are unconstitutional I’m declaring my right to be naked. I’m sick to death of being forced to buy and launder clothing. From now on you’re all just going to have to suffer the spectacle of my naked butt.

    1. Actually, I don’t think there’s any problem with you going around unclothed as relates to federal law. Now the state or locality you might be doing it in could be a different story…

      1. Actually you’re somewhat right. I used to be a nudist so I researched the law. Federal parks are the best.

        But my intent was to offend or at least elicit giggles. It figures that libertarians are unflappable.

  66. Thank you for the logical, reasoned argument that makest the point no one seems to understand; it’s unconstitutional.

  67. One alternative fact set is if someone actually obtains insurance but chooses not to reveal this fact to the IRS. The person could be motivated by a desire to maintain privacy from government as to their health related matters. The penalty would thus be imposed for refusal to disclose their health care insurance purchase.

    The IRS today compels financial institutions covered by the FDIC to reveal interest earnings of depositors. But the IRS could not demand that an insurance company deliver a complete list of persons who pay insurance premiums to private company X, let alone the details of the medical payment history for identifiable persons, without the persons consent.

  68. The proper constitutional challenge is to the erroneous interpretation of “commerce” to include anything except transfers of title and possession of a tangible commodity from a seller outside a state to a buyer inside that state. By its original meaning, it did not include extraction, manufacturing, retail sales, possession, use, or disposition. Also needed is to challenge the erroneous interpretation of the “necessary and proper” clause to mean anything but making a certain kind of limited effort, and not whatever it might be thought convenient to do to get a desired outcome. For more on this see http://constitution.org/col/02729_fed-usurp.htm

  69. Once upon a time, two women created the cutest velour hoodies and matching drawstring pants. The line was called Christian Louboutin and every starlet in Tinseltown had to have one. Soon after, so did the rest of the world. Now the once little brand has blossomed into a fashion empire, complete with clothing, Christian Louboutin Shoes, jewelry, handbags, and most recently, fragrance.

  70. Easiest way to fix the health care industry? Get rid of all the silly regulations and let the free market do the rest.

  71. If this stands then mandating us to buy shredded wheat, and everything else will be next. This may be the wedge that allows us to drive back the unconstitutional activities of the fed. Else it will be the end of America.

  72. PLEASE STOP REFERRING TO THE ADMINISTRATION AS THE FEDERAL GOVERNMENT. The PEOPLE are the government. “We the people, in order to form a more perfect Union….”

    1. Aye, it is the U.S. Constitution that is our sacred document.

  73. Put your mind to this for a while. If we lose the Constitutional attack on this law it would mean that we can force everyone to buy whatever we want. After conservatives return to power, what would your heart’s desire be to damand that the population buy that would madden a liberal?

    1. just to make them mad? I’m thinking firearms and FNC apparel… both of which must be worn at all times while in public.

    2. Would it even be possible for any creature, even a mere brain stem, to be more learning disabled than a Liberal. Everytime they’re in they change the rules to please themselves. Everytime they’re out they piss all over themselves the rules they changed for themselves are being taken advantage of.

      Culls.

      1. I want a free lunch, NOW! And a pony too.

  74. Barack Hussein Obama…..the Long Legged Mack Daddy:

    http://atlah.org/atlahworldwide/?p=7063

  75. With takers a line must always be drawn, they’ll never limit their abuses on their own. Not buying was already where I drew the line on this one.

  76. I’m not sure what the “no-mandate” solution would be. Because we’re a compassionate society, we will always provide care to people even if they don’t have insurance. No other position if politically or ethically acceptable. There is no argument against this position; it is a given akin to trying to argue to legalize murder.

    So the question then is how do we set up a system that lowers our costs and brings everyone into the healthcare system in an orderly fashion. Right now the system is chaotic and creates great uncertainty for those at the economic fringe in some manner (including small business owners who can lose their group coverage when their business fails.)

    In this situation, a mandate is the only solution with a private insurance system. (BTW, this has the same externality effects as lack of auto insurance as uninsured individuals affect the dispensing and cost of limited health resources.) If there’s no mandate then the only other alternative is a public health system. Choose your poison.

  77. It’s been Government’s mission to takeover HC for years. It was the ultimate power grab…and it was a hostile takeover of medicine against physician support sans AMA and Academia due to $$ and promises. HMOs/managed care didn’t quite do the job, although Clinton’s administration paid the insurers 500/month bonus [6,000 extra/yr] to anyone enrolling a senior in the HMOs helping to drain the Medicare fund. To hasten their progress, Congress exempted insurers from fed antitrust laws allowing 4 Insurance monopolies [physicians were barred from unionizing]_Wellpoint is ~5 acquired BCBS companies. State politics were also involved in stopping national-cross state purchasing & formation of employer groups for better pricing. Each state has DEPT of INS to regulate laws passed by each state gov independently. Then the feds passed HIPAA that exempts insurers, gov and legal from obtaining records. Purpose was really to set up all doctors online with a national provider ID. You will be next. What did you really expect would be the next move? And, look how it was done. Less than one vote per million lives w/ bribes, browbeating, quisi-incarceration, and emotional agony for some. Now it begins. In 4 years, after paying into the system without benefits, there will be no money left and costs will begin to escalate. There will be no accountability for where it goes, and denials for services will begin, however, now the estimated time for an appeal is 1 year. Within the next few short years, the decline in health care will be evidenced as the cost continues to rise_the once greatest system in the world [whether you want to believe that or not]will be lost forever,availablity of quality doctors and facilities, as well small local businesses that cannot function under the escalating costs will close in the USA. These businesses employed 80 of Americans/It is the demise of our country. Frightening for some but the goal for others that want to globalize and blend our nation with others seamlessly. There is not one EU nation or Canada for that matter, where their HC system is not in financial trouble. Ironically, they are trying to push privatization. Care is much different in these countries, but no one wanted to believe that fact. Once in the forefront of medical technology and R&D( US is 75% of worlds R+D while only a 6th of the pop), the innovation and availability of this technology will be limited to few, and will be steady unavailable for others. Health care in EU region is deplorable in many areas, IMO, and far from accessible to all. The rich will not be affected_the middle class and poor will suffer. Really, really stupid and a tragic loss to the people of the USA. Emotion and charm won the day. To hell with facts.

  78. It is if you have the intelligence and emotional stability of a child.
    http://www.christianlouboutinvips.com

  79. And your are as ignorant and ill informed as a cavedweller. Read this
    http://www.cbc.ca/health/story…..-mri.html, and this, ALL EU Health Care systems are in trouble. http://www.stockholm-network.o…..-Impatient FINAL.pdf_paste in your browser and read… if able to comprehend.

  80. This article affects the demand for Health Insurance and therefore is subject to regulation by the Commerce Clause. Oh, except for that tiny problem of the First Amendment. Well, give them time, they can only construct legal loopholes so fast.

  81. Legal issues!Taking control of a human, enslavement of physicians and confiscation/disruption of their practice after years of education and sacrifice, and after building a practice_Wowa_Tell me that’s constitutional. Why hasn’t this come to light? This bill literally takes control and manipulates physicians against their will. Slavery: a form of forced labor in which people are considered to be the property of others. Since when are physicians government property. Got ya…without physicians you have no health care.

  82. My only point is that if you take the Bible straight, as I’m sure many of Reasons readers do, you will see a lot of the Old Testament stuff as absolutely insane. Even some cursory knowledge of Hebrew and doing some mathematics and logic will tell you that you really won’t get the full deal by just doing regular skill english reading for those books. In other words, there’s more to the books of the Bible than most will ever grasp. I’m not concerned that Mr. Crumb will go to hell or anything crazy like that! It’s just that he, like many types of religionists, seems to take it literally, take it straight…the Bible’s books were not written by straight laced divinity students in 3 piece suits who white wash religious beliefs as if God made them with clothes on…the Bible’s books were written by people with very different mindsets…in order to really get the Books of the Bible, you have to cultivate such a mindset, it’s literally a labyrinth, that’s no joke.

  83. “The size of the lie is a definite factor in causing it to be believed, for the vast masses of the nation are in the depths of their hearts more easily deceived than they are consciously and intentionally bad. The primitive simplicity of their minds renders them a more easy prey to a big lie than a small one, for they themselves often tell little lies but would be ashamed to tell a big one.”

  84. Well said. Tucker is despicable, Crossfire became despicable (despite the presence of supposed “heavyweights” like Novack and Carville), and Jon Stewart is a comedian who has never proclaimed himself to be anything else. Just because certain people here don’t understand how satire works doesn’t change that fact. The fact that The Daily Show has gained some cultural traction doesn’t change that.

  85. Even if you go on his website, it’s still just a a ten minute discussion. The interview with Jim Cramer simply amounted to Jim sputtering something every couple of minutes while John wagged his finger at him the whole time. I’ve never seen him have an intelligent discussion with anybody, and he only talks to people that he knows he can bully into a corner. Usually idiots, yes, but it’s still dispicable. I don’t watch him that often, but it is people like him that make me wretch. The fact that people go around saying “He slammed so and so” in that “debate” pisses me off. John’s not directly responsible for that, but he certainly plays his audience to get that effect.

  86. Even if you go on his website, it’s still just a a ten minute discussion. The interview with Jim Cramer simply amounted to Jim sputtering something every couple of minutes while John wagged his finger at him the whole time. I’ve never seen him have an intelligent discussion with anybody, and he only talks to people that he knows he can bully into a corner. Usually idiots, yes, but it’s still dispicable. I don’t watch him that often, but it is people like him that make me wretch. The fact that people go around saying “He slammed so and so” in that “debate” pisses me off. John’s not directly responsible for that, but he certainly plays his audience to get that effect.

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  88. Even if he’s not a super strict libertarian and given the fact that his one vote probably won’t (but might) decide a bill, having him in the Senate is a huge pos

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  91. In this awesome scheme of things you actually secure an A for effort. Where you confused me personally ended up being on your specifics. As it is said, details make or break the argument.. And that could not be much more correct here. Having said that, let me say to you what did deliver the results. The writing is highly powerful and this is most likely why I am taking the effort to opine. I do not make it a regular habit of doing that. 2nd, while I can easily notice the jumps in reasoning you come up with, I am not necessarily sure of how you seem to connect the details which in turn make the actual conclusion. For right now I will, no doubt yield to your issue but trust in the future you actually link your facts better.

  92. Great post! What we need is a process server to help mediate all discussion, each side is just too angry to actually work together. Thanks!

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