Courts

A Mandate Too Far

Why ObamaCare deserves to fall

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The individual mandate in President Barack Obama's health care reform was a lightning rod for criticism long before it became law. As far back as the 2008 campaign, the idea provoked sharp complaints.

Here's one from a Democratic debate in South Carolina: "A mandate means that in some fashion, everybody will be forced to buy health insurance. … But I believe the problem is not that folks are trying to avoid getting health care. The problem is they can't afford it. And that's why my plan emphasizes lowering costs."

But it wasn't Hillary Clinton or John Edwards or Christopher Dodd who said that. It was Obama. He even ran ads warning that Clinton's plan "forces everyone to buy insurance, even if you can't afford it, and you pay a penalty if you don't."

Since then, he has come around to her view that a little coercion—well, more than a little—is not such a bad thing when it comes to overhauling the health insurance system. But now he has to convince the federal judiciary, which has been harder than persuading himself.

On Monday, a federal district court in Florida ruled the mandate unconstitutional and invalidated the entire law because it could not function without this requirement. Judge Roger Vinson based this verdict on the unfamiliar proposition that there are limits to how far Congress can go in bossing individual citizens around.

Not everyone shares that view. In an interview with The Washington Post, an anonymous White House official mocked the ruling as, "to put it charitably, very unconventional." Walter Dellinger, who was solicitor general under President Bill Clinton, found it "truly astonishing" to suggest that "Congress lacks the authority to regulate" health insurance.

But no one said Congress can't regulate the industry. The judge merely said Congress can't force Americans to purchase a specific product from a private business.

It's one thing for the government to set rules for people who have chosen to engage in economic activity. It's another to dictate to people who have chosen not to.

"It would be a radical departure from existing case law," wrote Vinson, "to hold that Congress can regulate inactivity under the Commerce Clause." Before the law was passed, even a neutral arbiter like the Congressional Budget Office said the mandate was "unprecedented."

Unprecedented it is—and, if allowed, an important precedent for future lawmakers. Vinson noted that Erwin Chemerinsky, a prominent liberal law professor at the University of California at Irvine, has asserted that Congress could not only force Americans to buy health insurance but also to purchase cars—say, to bolster a vital industry and preserve jobs during a recession.

Chemerinsky acknowledged that a law requiring Americans to eat certain vegetables "might"—might!—infringe on constitutional liberties. But you would not be taking a huge leap to surmise that if and when Congress sees reason to enact such a law, plenty of legal thinkers will argue that the Constitution allows it.

Dellinger denounced this decision will be overturned because it has such "radical implications." But how radical can it be to say that Congress may not do something that, since 1789, it has never wanted to do?

Nor would the ruling exactly put the federal government into a straitjacket. Writes Jonathan Adler, a law professor at Case Western Reserve University, "It is hard to see how a holding that would only prohibit a single federal enactment adopted in the nation's 200-plus-year history constitutes a 'major limit' on federal power." In fact, this decision probably would not affect anything else Washington currently does.

It wouldn't even prevent ambitious, expensive efforts to extend health insurance to everyone. The administration is free to offer more generous subsidies. It could limit future access for those who decline coverage. It could repeal the federal law requiring hospitals to provide emergency care to all, insured or not.

Would those options be as cheap or simple as compelling every American to buy coverage? Maybe not, which is why the mandate is so appealing to the president and his allies. But the nation's founders deliberately chose to prevent the government from doing certain things that may be efficient, attractive and even popular.

In considering this unprecedented intrusion, the courts had to choose between erring on the side of granting the government too little power or too much. Under the philosophy of our Constitution, it's not a hard choice.

COPYRIGHT 2011 CREATORS SYNDICATE, INC.

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  1. Good morning reason!

  2. Not choosing is also a choice!

    Yo, Sukooms.

  3. “Can’t a bitch get a napkin over here? I’m such a sloppy eater! What’s this pointy thing for?”

    1. +1

    2. 20 minutes to cook a piece of fish?!? Are you serious? Are you serious?

  4. Ok, conservatives, let’s get rid of the mandate. But let’s also stop treating anyone, ever, who shows up at the hospital without proof of insurance or a fat cashier’s check.

    So, for example, if your wife gets beaten, robbed, and raped and left in a ditch to die, the cops, upon finding her unconcious with no ID or proof of insurance, should mercifully put a bullet in her head, because she can’t be taken to the hospital.

    Oh, Libertopia, you land of dreams!

    1. “But let’s also stop treating anyone, ever, who shows up at the hospital without proof of insurance or a fat cashier’s check.”

      Why? Because you are a childish asshole? There is no reason not to treat people regardless of income. Indeed, there is a long history of charity hospitals in this country. The cost of treating these people is passed on via donations and the price of medical service.

      1. If you go to the emergency room and are treated without insurance or immediate payment, you get a bill. Pre-MaobamaCare, if you could not pay the bill it went through the usual bill collection process. Maybe Chony is advocating debtors prisons return for those who cannot pay that bill? Oh yes, that is exactly what Chony advocates under MaobamaCare when the IRS starts jailing people for not buying insurance.

        1. You realize this is only because it is mandated by federal law that you get treated and get a bill, right?

          Not so in libertopia…stop being a statist…

          1. Wait a minute: *you’re* chastizing someone for being a statist?

    2. Conservatives? I thought this was a libertarian blog. Oh wait, that’s right. Libertarians are just crypto-archconservatives that smoke pot.

      And, of course, libertarians are responsible for the current employer based system. In fact, anyone that takes a few minutes to actually look at the evolution of healthcare, will definitely see the shining results of a free market approach towards healthcare, and not some government influenced intereference in the market. So, absolutely, since government didn’t cause the problems, we should look to government to solve the problems.

      http://findarticles.com/p/arti…..ntent;col1

      1. Conservatives? I thought this was a libertarian blog.

        Let’s generously* assume that Chad was responding to an offstage voice.

        *Treat people as if they acted the way they should, and they’ll do their best to live up to your expectations.**

        **Sometimes.

        1. “The crux of the biscuit, is the apostrophe.”

          – FZ

          1. The crux of the biscuit is the hot cross bun.

            1. “a point in the text that is impossible to interpret”
              “we have to pass the bill, so you find out what’s in the bill.”
              Pelosi = buscuit?

      2. And, of course, libertarians are responsible for the current employer based system.

        Libertarians were running the wage and price controls during WWII?

      3. From the article cited by Mr. Whipple:

        “World War II brought about a shortage of labor and wartime wage and price controls prohibited employers from increasing salaries to attract workers. However, in 1942 the War Labor Board decided that fringe benefits up to 5 percent of wages would not be considered inflationary. Employers began to offer health benefits as a way of providing additional compensation. Total enrollment in group hospital plans grew from less than 7 million to about 26 million subscribers from 1942 to 1945.”

        Mr. Whipple then concludes from the article:

        “anyone that takes a few minutes to actually look at the evolution of healthcare, will definitely see the shining results of a free market approach towards healthcare”.

        Mr. Whipple seems to have some reading comprehension problems, or maybe he has some really twisted economic concept that blames free markets for government-imposed wage-and-price controls.

        1. Or, maybe CatoTheElder’s sarcasm detector wasn’t working.

          1. Nailed it in two tries.

    3. Here ya go, Chad.

      Libertarians want poor people to go without education, medical care, police protection, food, shelter, and oxygen.

      That’s what you wanted to hear, right? Now, you can copy this and paste it over at Kos as proof that libertarians are cold, heartless bastards. Now, run along.

      1. You forgot I don’t think they should have any sunshine.

        http://1.bp.blogspot.com/_8izT…..744577.png

      2. Its not your desire for them to go without, its your indifference. If your policies lead to the extinction of mankind, libertarians don’t care one bit. I’m sure they’d think its nice if that didn’t happen, but if it required any “infringement” on their “liberty” then its just not worth humanity continuing.

        I don’t even know why you people argue with us about what libertopia would actually entail. Who cares? So what if turned out to be a desolate planet? It’s about the means, not the end. We need to get rid of the statists, who cares what happens. Better to be dead than share in the responsibility of humanity with your fellow citizens.

        1. If your policies lead to the extinction of mankind, libertarians don’t care one bit.

          Which policy will lead to the extinction of mankind?

          Better to be dead than share in the responsibility of humanity with your fellow citizens.

          The Holocaust and the Rape of Nanking demonstrate the value of humanity.

        2. sskskdks fkgbnj dllrrd, eh?

          Gibberish.

    4. >>Chad|2.3.11 @ 7:20AM|#
      “Ok, conservatives, let’s get rid of the mandate. But let’s also stop treating anyone, ever, who shows up at the hospital without proof of insurance or a fat cashier’s check.
      So, for example, if your wife gets beaten, robbed, and raped and left in a ditch to die, the cops, upon finding her unconcious with no ID or proof of insurance, should mercifully put a bullet in her head, because she can’t be taken to the hospital.”

      Somewhere in Oz the Scarecrow is beaming.

    5. Shut up, anonypussy!

      1. Godd morning anonypussy

        1. Freudian slip! You are God like!

    6. Chad|2.3.11 @ 7:20AM|#
      “bullshitbullshitbullshitbullshitbullshit!”
      Go away, ignoramus.

    7. In Libertopia insurance is cheap and plentiful and so is health care. Also in Libertopia the wife is packing heat and shoots the rapist. But at least he will have insurance and gets excellent medical care before he goes to jail.

    8. “But let’s also stop treating anyone, ever, who shows up at the hospital without proof of insurance or a fat cashier’s check.”

      Feel free, Dr. Chad. Oh wait, that was one of your bullshit uses of “us” where you pretend you have the right to make decisions for other people like a petty dictator.

      How about you let doctors and hospitals decide if they want to give people emergency care without first checking their financial situation (as pointed out by others, those that can’t pay now, can possibly pay later)?

      You’re so obsessed with controlling other people that if you can’t force doctors to take all comers regardless of ability to pay, then by god you’ll force them to reject anyone who can’t pay.

  5. Dellinger denounced this decision will be overturned because it has such “radical implications.”

    Wut?

  6. An old fart story: When I was a kid, mothers were the primary care givers. The medicine cabinet was filled with aspirin, rubbing alcohol, iodine, bandaids, and PAREGORIC (bought over the counter). We got cut up, bruised, and amazingly survived most sickness without a trip to the doctor or the hospital. My family only carried insurance for hospital care, the doctors sent a bill which my Dad paid.

    Today, when a kid farts, has a runny nose, or the shits, a doctor or an ER visit is required. Wounds that once required cleaning and bandaging now must be attended to by a doctor. Why are health care costs and insurance so expensive?

    1. Many women do not want to be labeled a “Bad Mother”. God forbid a kid develops a complication from a simple cut that could have been “prevented” by going to a doctor. You might have child services come and take your kid and place him in foster care.

      “Bad Mommy, bad!”

      http://freerangekids.wordpress.com/

      1. So is it the Moms, the government or the news media that caused this problem?

        1. It is the Fall of Man, with delayed consequences, that caused this problem.

      2. Well, yes and no. Let’s also not leave out the fact that our enlightened and caring betters have decided that most of our medical care and general state of health can be trusted to non-experts.

        1. Are you referring to all of the holistic and homeopathic remedies?

        2. I assume you meant “can’t be trusted”. So is it the governments fault?

    2. You forgot castor oil and enemas. The enemas alone cured 99.99 of aliments, EVEN before they were administered.
      As soon as the compartive effectiveness rules kick in, expect to see a return of enemas.
      Probably will be the tag line on most coms, “Mom, get the enema nozzle!”

    3. Fargin, you got it right. Hit the nail on the head. Paregoric cures all. Just kidding. Has all the additional mandatory safety stuff for kids, and PC bull excrement gotten us any further. The ER visits are what is drowning is in rising medical costs and lest we forget the plethora of cockamamy lawsuits that drive up the doctor’s expenses through insurance rate increases. The trickle down effects the patients negativly in the pocket book. As to Mr. Whipple, most times a simple cut won’t get infected. An involved parent will easily spot an occuring infection and seek the proper medical attention an not go to the emergency room. The only way to enter the emergency room should be on your back on a gurney.

  7. The same people who decided that your kid needs to have play dates rather than the highly dangerous just going out to play.

    1. If the child is not properly controlled from birth, he might think for himself rather than becoming a nagging drone.

  8. we all want the best health care for free or almost free. that’s what people think when they first hear health care reform.

    sadly, it is not to be had.

    1. i dated this girl whose father worked for GM. at that time they had low/no copay for drs. and same for ‘scripts. every little thing this chick would go to a dr. for. i asked her why? her response, why not, i don’t have to pay for it? this was back in the late eighties. there was already this disconnect and people still don’t see how BarryCare just feeds on this.

  9. Yeah, it’d be like the government requiring you to get a musket and some other equipment, or you pay a fine equal to between one month and one years salary…that would never be constitutional, just ask the framers…

    …oh, wait, what? They did?

    Nevermind.

    1. Seriously…best line in that screed…

      “But the nation’s founders deliberately chose to prevent the government from doing certain things that may be efficient, attractive and even popular.”

      Yeah, like setting up socialized healthcare or requiring purchases from private companies…

      ….hilarious…revisionist history…will it ever end?

      1. Um, wut?

        1. Um, Uniform Militia Act? Um, 1792? Um, Act for the Relief of Sick and Disabled Seamen? Um, 1798?

          You people and your revisionist history are amazing. If you want to start talking about the founders and the constitution, then you should probably know something about them. How about you look at the laws THE FOUNDERS passed in their first few congresses…

          1. Yeah right. Next you’ll be wanting us to read those damn federalist papers.

    2. I know this will come as a surprise to you, but there are other parts of the Constitution than the commerce clause. Some of the other enurmerated powers that would be relevant here:

      To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

      To provide and maintain a Navy;

      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

      1. Government run healthcare for private merchant sailors was national defense? Who knew.

        That’s a more expansive view than we are accused of having of the commerce clause…

        Anyways, at least we agree they can tax, provide for the general welfare, require you to buy something from private companies to achieve these objectives, etc.

        Again, learn history. Its fascinating.

        1. I googled the musket purchase thing…the militia act of 1792 was mentioned in two PROGRESSIVE sites. Here I thought you were a historian, instead you’re a copycat. Ha, you people. So I found an article at Slate, here’s an excerpt:

          “How good of a defense, really, is the Militia Act for the insurance mandate?

          It’s pretty flimsy. The constitutionality of the insurance mandate relies on the so-called Commerce Clause, which grants Congress the power “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” The Militia Act (actually two bills passed within a week of one another in May 1792), on the other hand, depends on the Militia Clause, which authorizes the government to “provide for organizing, arming, and disciplining, the militia.” Because the two mandates have such different foundations, the constitutionality of one is essentially independent of the other.”
          Whole article: http://www.slate.com/id/2278063/

  10. “Why ObamaCare deserves to fall”
    It is a dumb fuck idea from a sack of shit with big ears.

  11. Walter Dellinger, who was solicitor general under President Bill Clinton, found it “truly astonishing” to suggest that “Congress lacks the authority to regulate” health insurance.

    This is the same Walter Dellinger who argued the losing side in Heller – i.e., he argued that D.C.’s total ban on handgun ownership was reasonable and did not violate the Second Amendment.

    Thank jeebus for Alan Gura.

  12. Challenge question: Can anyone think of any action or inaction, if taken by the whole population or a large portion of the whole population, would not result in some “cost-shifting” to any member or group of members of the population.

    1. Yes, it is called the national ‘Don’t feed the Unicorns Act’ of 2011.

  13. Ah, my libertopian friends. Not one of you is willing to admit that the only possible way to avoid spending money on, and thereby subsidizing, the uninsured is to forbid the treatment of anyone who can’t pay up front or prove they are insured. Anything less allows for free riders, and justifies the mandate.

    So, anyone willing to donate the bullets we will use to execute those raped wives?

    1. Goodness, twice with the same fallacious argument? I guess we have no choice but to surmise that you actually, firmly believe anyone who refuses to pay for medical assistance should be executed, Chad. You’re pushing Max levels of crazy, here…

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