We talked yesterday about the Supreme Court's consideration of the Affordable Care Act, and the conservative justice's search for a "limiting principle." By way of a follow-up, it's worth noting that if the right is still looking for one, there are plenty of options.
To briefly recap -- yesterday's post may not have been entirely clear -- conservatives are worried about a slippery slope. Congress has the authority to regulate interstate commerce; the American health care system is interstate commerce; and the Affordable Care Act regulates the health care system, so the law -- and the individual mandate that makes the law function -- is constitutional.
But is there a limit? In other words, if consumers can be compelled by Congress to purchase health insurance as part of a regulated market, the right is unnecessarily fearful that consumers can also be compelled to purchase vegetables, gym memberships, and anything else lawmakers might feel like requiring.
If the mandate is kosher, the argument goes, the court will need to set some sort of "limit" -- clarifying why an insurance requirement is acceptable, but a broccoli requirement is not.
Of course, for more than two centuries, Supreme Court justices have come up with all kinds of tests, standards, and limits, making this all rather pointless. It's not the Solicitor General's job to tell the justices what their limiting principle should be; it's the justices' job to come with the principle if they feel like one is necessary. (The ACLU didn't write the Lemon Test, for example; the Burger Court did.)
But if there are five justices looking for a way to approve an insurance mandate without a gym-membership mandate, they can choose from a menu of "limiting principles" that are readily available.
To uphold this law would not give Congress unfettered power to require us to eat granola, purchase electric cars or join health clubs. Participation in the markets for those products is not inevitable, nor does one person's choice not to purchase such products impose substantial and foreseeable costs on others because he will be able to get the product for free even if he doesn't buy it. Upholding the individual mandate would simply establish that where a national market is the victim of such a free-rider problem, Congress may address it as part of its general authority to regulate that market.
Jack Balkin came up with three more perfectly good ones, and concluded, "In sum, without giving Congress unlimited powers under the Commerce Clause, the Court can uphold the mandate under the moral hazard/adverse selection theory, the interstate externalities theory, or the 'It's a tax, stupid!' theory. Tony Kennedy, John Roberts, are you listening?"
We'll find out in June.
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Let's come at this from a different direction: Repeal and Replace.
Overturn the law requiring that hospitals treat everyone, and replace it with a "No shirt, no shoes, no Health Insurance, no Service" policy.
in a nanosecond after the outrage, we would get single payer- and all begin to speak wiz ze French accent. . .
We'll find out in June if the justices are lawyers and legal minds or just repuknican politicians with robes! Except that we already know that Scalia and his shadow Thomas are repuke stooges.
Yep, single payer is the way to go. Funded from general funds, i.e., through whatever form of general taxation is in place - at the moment, our slightly regressive income tax is the biggie.
The present US style medical services provision could continue to be available on the side, for those who fear publicly funded practitioners. I'd suggest a progressive sales tax be applied to privately paid for services and the proceeds dedicated to helping to pay for the publicly funded system.
Since availability of medical services affects every man, woman and child in a very intense, immediate and personal way, a further option would be to have a binding ballot item every two years asking the voters what percentage of the USA budget will be devoted to medical service provision.
Scr3w this. I hope they strike the entire thing. Obama and company messed this up from the very beginning and what we have is a half-baked mess.
We need single payer. Period. No "deals" with insurance companies.
If the entire thing goes then the REAL campaign can begin.
And that would be to rip the insurance companies with gusto. It would be so easy to do. It's a dream come true for a PR campaign. They're sitting ducks. They're the death panels and they've got the record to prove it.
How about we paint them as the vampires they really are instead of making deals with them? Get the word out. Get the word out constantly and consistently.
Once that has been done they'll be easy to pick off.
When a business, large or small, partnership or sole proprietor, is regulated pursuant to the Interestate Commerce clause, they are forced to comply with regulations which may require them to purchase equipment, e.g. safety equipment for OSHA. The same principle underlies requiring individuals to purchase insurance. There is nothing in the clause that restricts Congress to legislating about businesses. The SCOTUS is looking for some rationale to say that the clause does not apply to individuals or cannot force a person to directly buy a product or that inactivity is not covered by the clause. But there is no such limiting principle in the commerce clause. The only current limiting principle as articulated by the SCOTUS is whether the matter touches interstate commerce. This is broadly interpreted. The clause does not distinguish between activity or inactivity. It simply says Congress shall have the power to regulate interstate commerce. The conservatives are looking to the SCOTUS to read into the clause something that is not there. Strict construction anyone?
All that really boils down to is that "conservative principles" are simply matters of expedience.
'It's a tax, stupid!' theory
Thinking this through, I believe that the idea behind the theory is that Congress could have worded the legislation such that a $2,000 tax increase was passed (a fictional amount for this example). The legislation could also have included a corresponding provision stating that if you purchase or maintain health insurance, then you get a $2,000 tax credit. The attorneys attempting to overturn the mandate actually agreed in Court this week that such language would have been perfectly constitutional.
In fact, that is exactly what the mandate is. Individuals have a choice...pay the tax or buy heath insurance. So, why is it unconstitutional? According the plaintiffs, it all comes down to the semantics of the legislation. Call it a tax with a corresponding credit for taking some action, then it's constitutional. Call it a penalty for not taking some action, then it's unconstitutional. No practical difference...just semantics.
So, the Supreme Court should ignore the semantics of the legislation because, for all practical purposes, "it's a tax, stupid!"
or, Chief Justice Roberts could do as he said in the confirmation hearings and simply call the balls and strikes of the case before him and let each case fall where it may on its own merits. then a limiting principle for future cases would not be necessary.
Broccoliphobia. Who knew?
Is this Justice Scalia's roundabout way of admitting that Obamacare, like broccoli and a gym membership, is actually good for ya?
The "slippery slope" argument has to be one of the most overused and fallacious political rationales.
"If they can ban assault weapons and howitzers, next thing they'll take my gun collection."
Other examples abound, and this case is no different.
If the individual mandate is ruled to be unconstitutional, would that also make the Militia Act of 1792 unconstitutional, if it were still in effect?
Thoughtful essays on this topic have been written by Joe Conason, Daniel Greenwood, and Bradley Latino, for instance, but it seems to me that the Militia Act may not have been justified by the Interstate Commerce Clause in the first place anyway.
The argument as to if Obamacare is unconstitutional comparing being made to buy broccoli is very different. There is a difference because everyone will need to enroll so all can benefit. I know that if people were sitting in a circle with a plate of food in front of them with forks too long to eat with, the people with selfishness would starve, but those with decency would feed each other. OBAMACARE. Am I my sisters and my brothers keeper? Yes I am....
Those who care about paying their own way have insurance. Those who want someone else to pay, don't have insurance. Those who can't get a family doctor because they have no insurance will, instead, trot to the emergency room. They will be treated and the hospital will add this unpaid bill to the cost for health care and insurance companies will raise premiums.
There is a law that says I cannot drive unless I have auto insurance. No one wants a fender-bender with the dreaded "uninsured motorist". Yet not everyone who drives has insurance, or even a license. What happens when they are caught? A fine, or jail time, maybe a law suit by an innocent party's insurance company. Why not the same for having no health insurance? If you don't want to have auto insurance, you can simply not own a car. But it is an absolute certainty that everyone will need health care.
When my unplanned broccoli bill bankrupts my family, or I suddenly have to go to the gym or DIE, then we can talk about the broccoli and gym mandates.
Congress does not need to step in to those markets, since there have not been problems with those markets, or adverse selection, and so on.
<i>why an insurance requirement is acceptable, but a broccoli requirement is not.</i>
Part of the equation is that taxpayers are adversely affected because we treat people at emergency rooms.
Stop THAT and a lot more people will get insured, but we're too stupid to be either compassionate or sensibly cruel.
So here's the broccoli side:
Suppose, there's no such thing as hunger. When you starve, you just drop to the ground, too weak to do much else but crawl a few hundred feet.
There's food insurance where any restaurant will serve you anything you want on the menu, but if you want the Daily Specials, that'll cost you.
Too many people were dying out there so the government passed an unfunded mandate that ALL 4-star restaurants MUST feed starving people.
Well guess what? The starving people claw along the ground past McDonald's and "Stuckey's" to get to "La Belle Poisson" where the maitre d' rolls his eyes and puts you at the table by the bathroom or kitchen and brings out a as much broccoli as you can eat (everything else there is a "Daily Special")
While the restuarants is feeding these dopes that don't buy groceries (food insurance), the line at the door gets a little longer and the 4-star restaurant has trouble paying its bills.
Broccoli is NOT very filling and you'll be starving again in short order, but they get you out the door ASAP so they can get insured paying customers.
Too many people go to the fancy restaurants so the restaurants raise their prices on the daily specials to make ends meet. They also get taxpayer subsidies or all the broccoli eaters
Democrats propose a plan to subsidize restaurant insurance so people can stop at a fast food joint rather than require a much bigger meal at the fancy place and Republicans complain that the current system works fine.
"How DARE you make Americans buy food if they don't want to!"
"They're going to buy food one way or another. We'd just prefer they do it cheaper and before they drop to all fours. It's pointless and expensive."
"Ah, but that's FREEDOM!"