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The Trump Administration Won’t Defend Obamacare’s Individual Mandate In Court

Instead, the executive branch will argue that the insurance requirement and the health law's preexisting conditions rules should be struck down.

Credit / Stephen Boitano/Polaris/NewscomCredit / Stephen Boitano/Polaris/NewscomThe Trump administration won't defend Obamacare's individual mandate to purchase health insurance in court. Instead it will argue that the mandate is unconstitutional—and so are the health law's preexisting conditions rules.

It's an unusual, though not unprecedented, move. (The Obama administration, for example, declined to defend the Defense of Marriage Act.) And the mandate won't go without a defense; a coalition of blue states will represent Obamacare in court. It's also clear that the decision comes straight from the top: A Department of Justice letter announcing the decision begins by saying that it was made "with the approval of the President."

The real problem is that the Trump administration's argument is unlikely to hold up to legal scrutiny.

The White House's decision, unveiled in a brief tonight, follows a legal challenge to Obamacare brought by a group of conservative states, led by Texas. Those states argue that Obamacare's purchase requirement is now unconstitutional based on the logic outlined by the Supreme Court when it upheld the mandate in 2012—and that, as a result, the entire law should be struck down.

When the Supreme Court upheld the mandate, it ruled that the mandate was unconstitutional as an economic command to purchase insurance; the Commerce Clause of the Constitution does not extend that far. Instead, Chief Justice John Roberts wrote in the majority ruling, the mandate was constitutionally permissible under a saving construction—by viewing it as a tax penalty that raised revenue for the federal government.

But the tax reform law passed by Republicans in Congress eliminated that tax penalty, setting it to zero as of 2019. Technically, the mandate remains on the books, but functionally the tax law repealed it. Since the mandate no longer raises any revenue, the states' argument goes, the saving construction—that is, the notion that it is legal if understood as a tax—no longer applies. And since the mandate is the lynchpin of the entire law, the glue that holds the entire scheme together, all of Obamacare must be struck down with it.

Typically, the executive branch defends federal laws in court. But in this case, the Trump administration decided to side partially with the states in court. Although the federal government does not argue that the entire law should be struck down, the administration's brief does make the case that the mandate is unconstitutional, and that the law's preexisting conditions rules should be struck down as well. The government cites Obama administration arguments to the effect that the mandate and the preexisting conditions rules are inseparable, according to congressional findings associated with the law. (Notably, the Trump administration's argument, if it succeeded, would allow Obamacare's Medicaid expansion, health insurance exchanges, and the private insurance subsidies to stay in place.)

There may be some appeal in the turnabout of using the awkward logic of John Roberts' Supreme Court against the law that it was designed to save. But I do not think it has much of a chance, for several reasons.

The first is that it will be hard for the states challenging Obamacare to demonstrate standing, given that standing to sue requires a demonstration of harm. The mandate penalty is zero, so who, exactly, is it harming?

The second, as Jonathan Adler, a law professor at Case Western Reserve University, recently argued in a Federalist Society debate, is that it's very difficult to make the case that the mandate cannot be severed from the rest of Obamacare when Congress has, in effect, already done exactly that.

Yes, the mandate remains part of the law. However, by zeroing out the penalty as part of the tax law, the current Congress effectively declared that the mandate is severable from the rest of the law; courts are unlikely to decide that Congress was wrong that the rest of the law cannot stand apart from the mandate. So while it may once have been possible to reasonably argue that Congress intended the mandate and the preexisting conditions rules to be a tightly wrapped package, it is much harder to do so following the passage of the tax law. The arguments that the Obama administration made were about the law as it existed then; it is more difficult to apply those arguments to the altered law that exists now.

Indeed, if a court were to find that in passing the tax law, Congress acted unconstitutionally by repealing the mandate but leaving the rest of the health law in place, that could raise the question of whether the tax law itself was constitutional, and put the tax law's standing in legal limbo. That's probably not a road the White House really wants to go down.

Adler, to be clear, is far from a supporter of Obamacare. He helped devise one of the major challenges against it, King v. Burwell, in which challengers argued that the plain text of the law prohibited insurance subsidies in state-run exchanges. In the Federalist Society debate, he says he has problems with the law, and believes that "the individual mandate exceeds the scope of federal power."

Although it is still early, and previous health law cases have proven difficult to predict, it seems plausible, and perhaps even likely that this case turns out to have very little practical impact.

The end result may simply be that courts rule that the mandate as it now stands is unconstitutional and unenforceable—and that's it. Preexisting conditions rules stay on the books, as does the rest of the law. Given that the penalty, and the power of the mandate, has already been reduced to nothing, that would be a symbolic victory and nothing more.

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  • Leo Kovalensky II||

    The SCOTUS will almost certainly find a way to punt on this. Probably by ruling that the states don't have standing. Roberts's opinion in the original case was basically, "sorry, you get the government that you vote for."

    If the Congress thinks that the individual mandate is inseparable from the penaltax, then SCOTUS would be right in ruling that Congress should deal with that situation. It's almost like a stalemate between a conservative court and a conservative Congress who both want this unconstitutional thing shot down, but neither has the political guts to actually do anything about it.

  • BYODB||

    More like Congress doesn't have the conservative votes for it, and as you may recall there are Republicans who are in favor of overarching federal control of any and all health services. Hell, one of them ran for President not so long ago if you recall Mr. Romney.

  • a tandem||

    could you invert facts more often? Romney had a STATE plan and said many times it should be up to the states

  • Bubba Jones||

    would be a symbolic victory and nothing more.

    Um, no. It would prevent the mandate from being reinstated.

    I suppose that a future congress might argue that new evidence shows that it is in fact a lynchpin, quote Roberts, and reinstate it.

  • mse326||

    That's not true. It can be reinstated as long as there is a penalty/tax contained. It doesn't have to be a lynchpin. A ruling of unconstitutionality with $0 penalty does not change the original Obamacare ruling of constitutionality.

  • Longtobefree||

    The law has no severability clause, among its many other flaws.

  • Brett Bellmore||

    The Supreme court will just read one in, the way they decided that the penalty was really a tax, even though the law itself called it a penalty.

    Having embarrassed themselves saving it, they're too invested in pretending it's constitutional to pull the plug on it now.

  • mse326||

    I'm not gonna defend the original ruling because I completely disagree with it on many levels. But, I think your issue regarding reading in a severability clause is misplaced. That is hardly the work of an activist Court as it is preferred by small "c" conservative judges. Severability, even without a specific clause, has a long history that doesn't really favor one political side over the other.

    Now, personally I am against it since I view all bills passed as a whole that goes through compromise and such so I don't know that you can ever credibly say it's fine without an actual clause, but that I do admit is a more aggressive way of judging and again not one that is inherently Liberal or Conservative

  • Brett Bellmore||

    I'm of the same view: Severing an unconstitutional clause creates a law Congress didn't pass, and might not have wanted to. Striking down a law entire at least in principle, simply restores a legislatively generated status quo ante.

    Perhaps Congress would pay more attention to the constitutionality of their acts if severability were disfavored. Then again, maybe they'd just be more diligent about refusing to confirm Justices who cared about that constitutionality... You always have to be aware of the possibility of unexpected consequences.

  • Malvolio||

    IN GENERAL, I see your point about severability, but in this case, it's hard to say that Congress intended Obamacare with a completely toothless mandate, but not one with no mandate at all.

  • damikesc||

    I'm not gonna defend the original ruling because I completely disagree with it on many levels. But, I think your issue regarding reading in a severability clause is misplaced. That is hardly the work of an activist Court as it is preferred by small "c" conservative judges. Severability, even without a specific clause, has a long history that doesn't really favor one political side over the other.

    Basically, all legislation --- except this --- includes a severability clause. This one didn't as, basically, a dare to the courts.

    It's not the courts to read anything into the law. If the law doesn't specifically say "This piece can be lopped off", then it cannot. And if it unconstitutional, the entire law is. you cannot have a law that is only a LITTLE unconstitutional. It is a rather binary thing.

  • Elias Fakaname||

    Maybe we get another new Justice on the court before it reaches them? That might help.

  • Brett Bellmore||

    It was a bad decision upholding it in the first place.

    Back with the National Firearms Act, the Court ruled that, if Congress was going to say a penalty was a tax, it wasn't the Court's place to dispute that, so long as any revenue at all might theoretically be obtained.

    With Roberts' ACA ruling, they went further, and ruled that even if Congress DID say the penalty was a penalty, the Court would rule it a tax in order to declare it constitutional. (And never mind that it was a tax that originated in the Senate; Just another one of those clauses the judiciary don't feel like enforcing.)

    Is the court that did that going to take an opportunity to strike the law down, after prostituting themselves to save it? I don't think so.

    Anyway, while the mandate was offensive, it's the regulations imposed on the insurance companies that are the real problem. The mandate was an (inadequate) effort to make sure they didn't bankrupt the whole industry.

    With the mandate zeroed out, the "death spiral" turns into a vertical power dive, yet those regulations are probably on solider ground than the mandate ever was.

    In the end, there's no substitute for repealing this monstrosity, the Court isn't going to save the country if Congress can't be bothered.

  • BYODB||

    Sadly, I find myself in agreement with you. Free shit is always pretty popular, even when it turns out no one is actually getting free shit.

    Bottom line: People are apparently too stupid to understand that healthcare isn't 'special' in terms of markets, and their attempt to centralize all health markets won't end well but by the time people figure it out it'll be far too late.

    And people wonder why there's a major shortage of GP's in this country. Why become a Doctor when you're basically a slave to the state?

  • JFree||

    And people wonder why there's a major shortage of GP's in this country. Why become a Doctor when you're basically a slave to the state?

    That's just utter nonsense. There's a shortage of GP's because our healthcare system is transaction-driven not relationship-driven. Specialists are transaction doctors. GP's are relationship doctors. But because our system is transactional, GP's have to run patients through their practice like rats through a timed maze.

    There is no GP shortage on the scale of our shortage in any other developed country. The closest are Greece and Poland. Every other country has anywhere from 2 to 6 times more GP's per peep. Far more 'state intervention' in their health system than we do - 2 to 6 TIMES more GP's for a patient to choose from who they can then build a relationship when well so they can trust their judgment when sick - so costs drop long-term.

  • mulp||

    The problem with conservatives is they are advocating either single pays for death panels implementing creative destruction organ harvesting.

    They argue the young and healthy should not buy insurance that pays for old people.

    But the only way young people don't pay costs of old people is by a bullet to the brain at age 30.

    If you do buy insurance you don't need because the premiums are low, conservatives argue the premiums must become unaffordable because you now have the pre-existing conditions of getting old and costly. But if premiums are high, they argue you should buy. And if you want to buy, then they argue insurers should refuse.

    That leaves people getting EMTALA mandated care that can't be paid for, requiring a government bailout.

    Unless a new law calls for killing patients without money to pay medical bills to harvest organs for rich sick people.

  • Cy||

    The argument that the young in anyway should be paying for the old is quite frankly a Massive steaming pile of dead babies. The 'old' have been on this earth much longer and have had far more opportunities in relation to population to resources and the MASSIVE benefit of compounding interest. They have no excuse. None. The current ideal of 'no person left in the gutter,' is creating policies that're throwing the young in the gutter.

  • TLBD||

    Also the old are the richest demographic by far.

    Problem is they vote more than young people and young people are too emotionally immature to vote against giving those poor old people more of their money.

  • Earth Skeptic||

    Once again, democracy sucks.

  • Gracchus||

    The old may be the richest demographic, but how is that wealth apportioned within the demographic? If most of the wealth owned by the old is owned by a small percentage, then the whole "Boomers are stealing from MIllennials" argument falls apart, especially if a large number of Boomers are barely holding on to begin with.

  • Sevo||

    Gracchus|6.8.18 @ 4:46PM|#
    "The old may be the richest demographic, but how is that wealth apportioned within the demographic? If most of the wealth owned by the old is owned by a small percentage, then the whole "Boomers are stealing from MIllennials" argument falls apart, especially if a large number of Boomers are barely holding on to begin with."

    Hypothetically, you might be correct, and of course as a lefty windbag, you offered nothing supporting your hypothetical.
    It's fun calling you on your bullshit!

  • Gracchus||

    "you offered nothing supporting your hypothetical."

    Around 60% of those over the age of 65 rely on SS payments for at least half of their income, and its the biggest source of income for the bottom 80% of the 65+ population. Since SS isn't particularly generous, we can safely assume that the vast majority of people over the age of 65 don't have a lot of assets/income flows to rely on for retirement, thereby implying that they're a lot poorer than you think they are. Of course, that's entirely separate from the question of whether we should subsidize their retirement.

    I'd post the 2012 AARP article on sources of income for the 65+ population but its a PDF doc and Reason won't let me post a URL longer than 50 characters.

    "It's fun calling you on your bullshit!"

    I bet it is...

  • JFree||

    AMONG the old, the most striking difference between richer and poorer in the US is life expectancy. Virtually all of the increases in life expectancy over the last 100 years among those who survived infancy/childhood/utehood have been for the top-half of income.

    eg - for the cohort of males born in 1912, their life expectancy at age 65 (in 1977) was 15.5 years if above average income and 15 years if below average income. For the cohort of males born in 1941, their life expectancy at age 65 (in 2016) is 21.5 years if above average income and 16 years if below average income.

    Looking at life expectancy at age 50 (say the near-old with a bit of time to maybe fix things) is even worse. For the lower 2 income quintiles, life expectancy has actually DROPPED over the last 40 years and is now at 2nd world type levels (Mexico, Brazil, Thailand, etc).

    Data here

    This has a huge actuarial impact on how SS and Medicare (or their privatized replacement) should be structured and funded.

  • a tandem||

    For the lower 2 income quintiles, life expectancy has actually DROPPED over the last 40 years and is now at 2nd world type levels (Mexico, Brazil, Thailand, etc).,/I.

    that one year difference in life expectancy of 55 year old males per income quintile is the same or WORSE in the UK, Canada, Australia, France and OMG, Sweden. So what is your point of listing just places like Brazil, Thailand and Mexico where lower income peopled generally are engaged in manual labor and legume diets and the difference would be less anyway?

  • JFree||

    IDK what data sources you're looking at - but the ones I have show that the last time those life expectancies were comparable between the US and countries you mention was the 1980's. Since then, those other countries have increased life expectancies across all income quintiles, we have increased it for the top half only.

    In all cases (us and them), we are talking about a socialized income/health system for that older age group. The difference is theirs is also socialized at earlier ages too while ours only kicks in at that older age. So it makes a big difference in how those different systems are funded if one model lifts all boats while the other only lifts 'better' boats that can already presumably float by age 65.

    Yes there are always differences between low income/educ/manual labor v high income/educ/easywork. Everywhere. Always. That's not my point and the only morons who believe that can/should be eliminated are true socialist pols (ie Sanders-types not all D's) who aren't the majority even in Europe.

  • TLBD||

    The simple fix is making the insurance company liable for life at the same terms of the insurance for the disease or injury you were diagnosed with when you had that insurance.

    Which is how it should be. IMO.

  • Azathoth!!||

    The problem is this asinine 'young vs old' thing we pretend is real.

    Here's the facts-- you're gonna be a 'young adult' for 10-12 years depending on your personal maturity level. After that, you're lumped in with 'old people' by media who endlessly pursue the money of the youth as if it has some permanence

    And, of course by young people who, thanks to the structure of the human brain, are predisposed to think that 'OMYGAWD no one's ever thought of this before!!'. Even when their rational mind tells them otherwise

    Everyone. Every single person who doesn't die young is going to spend most of their life OLD. Chasing the young is pointless. Chasing youthful vigor on the other hand....

    So 'robbing' the young isn't possible. Because they ARE the old as well.

  • JFree||

    Our healthcare system is broken WAY beyond that generational element for individuals.

    ERISA requires annual open enrollments and with annual enrollments, there is no incentive for the insurance/provider side to actually provision preventive care. That preventive care is precisely the only sort of medical that 90% of younger folks and all healthier folks use (most of whom are going to sign up for their employers ERISA plan) - and is the only thing that drives medical costs down as people get older and sicker. Since that part of the healthcare system doesn't exist in the US, larger employers control their own cost exposure by making full-time employment less secure as people get older. So they either have to find an 'individual insurance' solution (the market for which has been broken for 30+years in the US) - or get even sicker/poorer and fall back on govt as the payer-of-last-resort.

    At this point, it is now a major reason entrepreneurship is dying quickly in this country. Because the issue itself IS an important one to get good employees and a)they can't solve the issue on their own and b)the smaller employer can't afford to be their own risk-pool and hire benefits experts as overhead and c)govt in the US is uniquely incapable of doing anything productive to solve the problem in exchange for some type of tax payment.

  • a tandem||

    Our health system outperformed most developed democracies systems.

    And "in exchange for some form of tax payment" means what? you mean taking from people who have worked harder and saved.

  • JFree||

    Our health system has not 'outperformed' ANYBODY. We are spending 18% of GDP on that - 50% more than anybody else. We are spending more via TAXES than any country except maybe Norway and Netherlands - with the difference being everyone else can solve the health issue for everyone with that level of public spending. We can't solve anything for the entire working age population.

    There is a huge advantage for entrepreneurs when potential employees are neutral about what size company they work for because their healthcare is not a direct function of their employer. If that comes with paying for the solution via taxes rather than insurance company payments so what? The only question is whether that payment solves the underlying problem cost-effectively. Having to spend $17,000 to hire someone with a family v $7,000 for a single person to provide employer healthcare = a very regressive payroll tax.

    you mean taking from people who have worked harder and saved.

    No. I mean NOT taking from those who ACTUALLY create productive jobs. That's the effect in the US where we lay the burden on employers to provide healthcare for the working and fund healthcare for the non-working. Failing to solve the problem means laying the burden on employers to solve it - because the problem cannot be solved by most individuals and no one has ever put together any workable idea for how it can be solved that way. Repeating mantras does NOT solve the problem.

  • Brian||

    You know, I haven't heard a lot of bitching about a lack of single payer healthcare lately.

    Did it go the way of the ozone layer? Is it "Oh so 2012?"

  • Cy||

    If the meme doesn't have "Trump" in it. It's gone quietly into the night.

  • TLBD||

    Democrat primary ads are all about it right now in my state. Also guns. Makes me laugh because those are losing issues here in the general.

  • tlapp||

    Liberals looked the other way when Obama selectively enforced laws and/or changed them without going through congress. Now this happens as well. As much as I wish Obamacare was just flat out repealed the bigger issue is when you don't defend legal constitutional process for one, you do it for no one. The precedent has been set and our elected representation means less because of it.

  • Earth Skeptic||

    That's adorable: you want people to be logically and ethically consistent.

  • Ben of Houston||

    This is different. The Trump administration is not defending a law they feel is unconstitutional. This is a valid method of repeal. It is far different from simply ignoring the law, in which it remains on the books but is only applied when convenient.

  • Brett Bellmore||

    Indeed, it's more honest than the usual alternative: Defending the law you don't like, and deliberately doing a bad job of it.

  • OldCurmudgeon||

    Yea, Obamacare defenders should be applauding the Trump administration, not criticizing it. They are at least giving the law a fair shake.

  • JesseAz||

    The requirement of tangible harm to require standing needs to revised for cases where a court can't identify a party who would be harmed. A congressional law requiring 1% of federal revenue, as an absurd example, to be routed to the congressional pocketbooks would not be able to be challenged under current standing dicta since there is no harm, only a corrupt benefit.

    In cases where no standing is apparent, courts should allow cases to proceed. In cases where a party can be identified by the courts as having standing, only then should a suit be struck down.

  • Bob Mitchell||

    Show me a libertarian solution to preexisting conditions that makes sense. It is not going away until it is solved.

  • ace_m82||

    Get govt out of healthcare and it'll cost levels of magnitude less.

    www.mises.org/wire/how-governm.....-expensive

    Insurance against pre-existing conditions is laughable. You don't "insure" against past events! You want to crash your car and THEN purchase insurance!

  • BYODB||

    This x1000.

    Retards don't understand that you can not insure against a sure thing. We call that a layaway plan.

    I find that the easiest way to explain this concept is to compare insurance to gambling, because that is exactly what it is. In those terms, most people suddenly understand how insurance works, and why 'insurance' is exactly what no one is talking about.

  • loveconstitution1789||

    Catastrophic health insurance for major stuff, which is far cheaper than what we have now. This would include heart attacks, cancer, etc.

    Pay cash for all other minor medical stuff. Pay cash for having babies, broken arm, etc.

  • Earth Skeptic||

    But free stuff!

  • Last of the Shitlords||

    I would say pay cash or join an affordable co-op for more buying power. Maybe add an ala carte supplement for some specific need.

  • Robert||

    Has there been any country in which any solution even approximating that was implemented? Partly libertarian, partly a solution, making partial sense?

  • JFree||

    Singapore funds retirement/health/housing through a Central Provident Fund.

    The problem with ideologues in the US is their insistence that the ONLY 'groups'/associations/etc (mandatory or voluntary) that would be 'recognized' in any structural reform are Wall St and the financial providers. So every 'reform' they propose is in fact nothing but advocating that an organized bunch of fat cronyist pigs be empowered to do the stealing.

    What libertarians imo really need to do is understand WHY the pre-social welfare systems also failed. The 'gold standard' was that sort of system in theory. Save your gold coins from employment - deposit them in banks - and you can withdraw them in retirement when they are worth the same. Until the banks say fuck you to EVERY depositor and they have the power to make sure govt backs them not the individual depositors.

  • epsilon given||

    Libertarians *do* understand why pre-social-welfare systems have failed: through a combination of regulations that limited what these systems could do, and "services" that provided lousy versions of what these systems could provide, but for free! (never mind the tax collector "wizard" hiding behind the curtain), these systems whithered away. A few of them still exist, but as mere shells of what they were in their hay-days.

    The free market fails, but only because we haven't yet found a good antidote to the combination of crony capitalist rent seekers and power-hungry bureaucrats chipping away at and sabotaging the free market because it gives them more power.

    It's a horrible modus operandi: blow some minor issue out of proportion into a crisis (with bonus points if the crisis is even marginally real); pass regulations which make the situation even worse; blame the "free market"; lather; rinse; repeat ad nauseum.

  • Earth Skeptic||

    Thought #1: we need to re-define (and perhaps re-label) this pre-existing condition thing. We all share one pretty dramatic health condition, in that we will all die. And if the medical industry is nearby, we will incur expenses, ranging up to ridiculous. Other "conditions" are common, if not near universal, and are recognizable only because they deviate from an arbitrary "healthy norm". (Or perhaps not arbitrary, viewed cynically relative to medical and insurance industry motivations.)

    Thought #2: libertarian philosophies embrace the autonomy and responsibility of the individual. Conditions (pre and post insurance policy issue date) need to also be considered in terms of individual behavior. Only collectivists seek to support the stupidity of others.

    Thought #3: libertarian philosophies also embrace market solutions. People likely to incur more expenses have to pay more for insurance, if indeed what we are talking about is "insurance", the voluntary pooling of resources to pay for unusual individual events.

    Thought #4: if by "making sense" you mean finding a libertarian solution that is "fair", then perhaps you have set up an impossible goal. In general, life is not fair, and seeking to make it so probably violates libertarian ethics pretty quickly.

  • Last of the Shitlords||

    Pre existing conditions are what charity is for.

  • JFree||

    That is one of the two reasons the charity model failed. When the 1918 flu pandemic hit, existing private charity hospitals mostly shut their doors. Those funding those hospitals had never had any interest in creating the instant surplus capacity that is the only way to deal with an epidemic. And to the degree they had space, the main funders of those hospitals still refused entry because they didn't want contagious people near to themselves. So patients were generally sent home to spread the disease and die. Dying at home is a big reason people don't actually know how many Americans died. Probably 675,000 or so - mostly young healthy adults (unlike most flus). Roughly 13x the number of American soldiers who died in WW1 - or a 9/11 every single day during the main waves of the outbreak. It is the main reason municipal hospitals (paid by taxes, open to all) were built in large numbers in the 1920's and 1930's.

    The other reason was Jim Crow.

    Those are two big failures of the charity model that can't just be dismissed by saying 'charity'.

  • epsilon given||

    Jim Crow is a stupid thing to bring up when claiming Charity failed. Jim Crow was *government law* that *forbade* individuals from acting.

    Jim Crow was government fail; to the degree that it was implemented by democracy, it was democracy failure; to the degree that it wasn't prevented by Constitutional guarantees, it was a failure of republicanism.

    As for the 1918 flu, a major part of the blame lies with the US government, which insisted on suppressing news about the flu, because knowledge of the flu would have hurt the war effort. How many deaths would have been prevented, had the government been open and honest with the issue from the start?

  • loveconstitution1789||

    It will go away.

    Keep pointing out that people are responsible for their own actions.

    If you want to smoke, don't expect other people to pay for for lung cancer treatment.

    If you want to eat until you get fat, don't expect other people to pay for treatment related to that.

    If you want to have babies, don't expect other people to pay for that.

  • Headache||

    if you read Reason long enough, don't expect other people to pay for your therapist.

  • Echospinner||

    Who does pay for that?

    Someone always pays. That is why health care is not a box of cornflakes.

  • loveconstitution1789||

    You pay for your medical needs. Like all insurance, the risk is spread over all voluntary participants in the insurance plan.

  • Sevo||

    Bob Mitchell|6.8.18 @ 10:53AM|#
    "Show me a libertarian solution to preexisting conditions that makes sense."

    What a fucking imbecile!
    If low-watt lefties chose to jump off a bridge and die, I am in no way obligated to offer 'a solution'.
    Go ahead and jump; the world will be a better place.

  • Last of the Shitlords||

    I'll say it again. Charity is the answer for that kind of thing. Which would work a lot better without progressives in the way.

  • Trumptard||

    Change of health status insurance (like the old "cancer" and "dread disease" policies). These won't help free-riders though.

    Charity and government programs for people born with pre-existing conditions. Requiring health insurance companies to pass this cost along to policyholders is not fair. Society doesn't want people to go without care. Great! Now society has to pay for it.

  • Let freedom ring||

    Superman almost gets it, but like most folks draws back from the brink. Arguing over the mandate/tax penalty is not enough. If the mandate is a tax penalty, constitutionalist should go "down that road" and argue the so called income tax.
    The fallacy is that the income tax is an unapportioned tax on everyone's salaries. It is not. It is an excise tax on federal privilege. It is only applied to the exploitation of federal privilege for profit. If you make money off a fed privilege, the feds can demand you have health care insurance . he who pays the piper calls the tune. Those who earn livings in occupations of common right are non taxpayers and cannot be so mandated.
    Join the one percent of educated patriotic Americans who file educated income tax returns and receive full refunds of state and federal withholding , including payroll taxes. Stop complaining about politicians, stand up for the rule of law! Www.losthorizons.com

  • brec||

    if a court were to find that in passing the tax law, Congress acted unconstitutionally by repealing the mandate

    The tax law did not repeal the mandate; it removed the tax/penalty for non-compliance. The requirement of buying minimum-coverage health insurance remains intact, although it is reasonable to expect compliance to decline precipitously—although not completely!

  • brec||

    P.S. The post acknowledges that

    Yes, the mandate remains part of the law.
  • texexpatriate||

    Here's just one more example of what happens when a Congress passes nutty laws. Totally irrational in the beginning, and even irrational trying to end it.

  • loveconstitution1789||

    Just repeal this turd of an Obama law.

  • Last of the Shitlords||

    Congress doesn't have the balls. Or the spine. Or the tendons, or the........ oh, forget it.

  • tbc||

    Congress was nutty to pass it and Roberts was nuttier to re-write the legislation because he didn't want to be responsible for overturning what is clearly an unconstitutional law.

  • jerbigge||

    A libertarian society (no drug laws, prescription laws) means that people are free to take care of their own health to the best of their abilities. Which for those willing to do the necessary studies means that having the freedom to purchase whatever medical or non-medical drugs that they wish, most likely can take of a considerable amount of their own health issues without involving medical professionals. Under these conditions, taking care of simple chronic conditions such as high blood pressure, high cholesterol, high blood sugar, arthritis quickly become something that they can do for themselves at a cost of a few hundred dollars at the most. As it stands today, an insulin dependent diabetic can purchase Relion Novolin insulin at a Walmart pharmacy for $24.88 a vial. This is a cost close to 10% of the cost most diabetics pay for the more modern insulins. Walmart also has its own test strips and meters that cost less that the "brand names".

    The reality is once the government no longer is allowed control of medical drugs, the cost of self treatment is low enough that the cost of health insurance for things you can't do for yourself will also be much lower than today. And a lot of these "pre-existing conditions" are actually things that in a free society people could take of to a far greater extent that is possible today.

  • Last of the Shitlords||

    I don't think it's quite as easy to manage all those medications as you think. Especially for older people, or those with complicated conditions.

  • Sevo||

    "I don't think it's quite as easy to manage all those medications as you think. Especially for older people, or those with complicated conditions."

    So
    .
    .
    what?
    You think 'older people with complicated conditions' are incapable of seeking help?

  • Last of the Shitlords||

    I'm saying that trying to figure it out without some kind of qualified expertise is a bad idea.

  • Mark22||

    Why is the country wasting time on this poorly designed, fraudulent, crony capitalist piece of Obama's legislation? Just repeal it.

    Well, maybe after McCain finally leaves the Senate.

  • Rockabilly||

    but how will I know to buy insurance if the goobermint doesn't force me?

    Should I write a note to myself 'buy insurance, or is there some kind of app to help me?

  • a tandem||

    The double standards of the Obamacare defenders are stunning

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