Some useful thoughts from James Taranto:
In defense of Marshall, he runs a political blog and is not a lawyer. But our sense is that he accurately captures, as well as mirrors, the prevailing mentality of those on the progressive left who are lawyers. They refused to take seriously the argument that ObamaCare is constitutionally infirm, and they are now realizing that was a mistake.
We recall a conversation with a young liberal lawyer we met at an event in late March, a few days after the House passed ObamaCare. When we pointed out that there were likely to be court challenges to the new law, particularly the mandate to purchase insurance, she was dismissive. She asserted that the constitutional questions were well settled. When we offered arguments to the contrary, she did not engage them but became emphatic to the point of belligerence, insisting that it was “crazy” to harbor any doubts about the constitutionality of ObamaCare.
Our position was not that ObamaCare was clearly unconstitutional or that it was likely to be struck down, merely that there were serious constitutional arguments against it that had some possibility of prevailing. This modest claim so shocked our new acquaintance that an initially pleasant encounter turned rancorous and left us feeling she had insulted our intelligence.
Don’t worry, we got over our hurt feelings. But the dismissive attitude we encountered in that conversation and again in Marshall’s post leads us to think that the pro-ObamaCare side may not be prepared to mount a convincing legal defense. If there were five Stephen Breyers on the Supreme Court, they wouldn’t need to. But there are only four. If the Obama administration’s lawyers are to win over Justice Anthony Kennedy, they’ll have to do a lot better than arguing that the other side’s case is stupid, crazy and laughable.
And yet, based on the evidence, they don’t seem to be capable of it. Remember Crazy Nancy’s cackles of “Are you serious?! Are you serious?!” Yes, we were.
This is just a special case of the general proposition that the left, because it has cocooned itself in academia, the Beltway and the mainstream media, and excluded those with other views, isn’t used to actually having to defend its views, and when confronted with actual arguments against them, has to resort to “hater,” “racist,” “wingnut,” etc. It’s arguments, such as they are, are hothouse flowers that can’t survive in the wild. And probably won’t survive the SCOTUS, either.
You know, there is much to the idea that NASA is unconstitutional. The same would go for the Department of Education. The War on Drugs is unconstitutional on its face. Davy Crockett was right – nowhere in the constitution is Congress allowed to engage in Charity, so Welfare is out, too, and so is Medicaid. In fact, if you just went through current government programs and agencies and slashed those which were unconstitutional (including this health insurance scam) the budget would probably balance or be in the black.
But can I choose to not pay the penalty? When I don’t pay the penalty, people with guns will eventually show up.
Can you name any tax-credits that are associated with non-voluntary activity?
We both agree that NASA is constitutional, but I guess we disagree on the philosophical import of the idea that a state of no-NASA is also constitutional compared to a very select few things that the government must provide according to the constitution.
Are you serious?!
The attitude that the constitution is no hindrance to making law seems close to universal among politicians. Davy Crockett is dead.
I’m perfectly happy to pay for my open heart surgery. That’s why I have health insurance. I want you to have to pay for yours, and the only way that happens is if you buy into a health insurance program.
Regarding “people couldn’t get heart surgery before” – the whole point of civilization is that we live better than our ancestors. The quest for a better life was what drove us to get out of the caves.
I suspect that part of the reason the health insurance is so expensive is due to bundling. The new healthcare law encourages even more bundling than we have today. My current plan is not in compliance with the new regulations in that among other items is does not cover maternity care. This is a required coverage under the healthcare law, but adding this coverage would increase my premiums, and I do not wish to do this. Bundling requires me to purchase coverage that I would not otherwise purchase.
I want you to have to pay for yours, and the only way that happens is if you buy into a health insurance program.
Not that I need open heart surgery; but if I did need one; why won’t you except that I can pay it out of pocket? I can pay $40,000 right now, and not even go into debt. So your premise doesn’t even make sense. There is simply no truth that I require a health insurance program to pay for such a procedure.
The truth is you want me to pay into a plan that will subsidize your open heart surgery procedure. And if not yours, then someone else that you think deserves my subsidy rather than your own charity. And it is fine that you want this. I want you to pay into a plan that subsidizes my family vacation to Europe, Africa, India, Australia, the South Pacific, Hawaii, and Branson (oh, got to have a trip to Branson). All of that, particularly the trips to Hawaii and Branson are economic activity, so by your understanding of the US Constitution; I can have my Congressman just create a bill for you to cover those expenses for me.
Hal, you don’t really get forced into buying something — you just get penalized financially, which is just like not getting a tax credit because you didn’t buy something. You didn’t buy a windmill, so you don’t get a tax credit. You didn’t buy health insurance, so you don’t get a tax credit.
The only problem with this argument, Bob is that “like” is not “equal”. A financial penalty is not a tax credit ever. The tax penalty scheme starts off harming the penalized by default. With Obamacare, I start off earning 2.5% less.
And you don’t understand the meaning of “force”. Let’s consider a reductio ad absurdum. For example, consider a payment from the government equal to my salary, if I engage in a desired activity. Now compare that to paying 50% of my salary in a tax penalty, if I engage in the undesired activity. The incentive is roughly alike in that people who engage in the desired activity earn twice as much as people who don’t. With inflation, the two probably grow a bit more similar, but the taxpayer still has a lot more money whether or not they comply with the terms of the credit.
But there’s two key differences. First, by making it a tax penalty instead of a credit, government doesn’t incur debt which is otherwise a natural restriction on government power. The money flows to the government while simultaneously creating the coercive incentive.
Second, the regulation of a credit is lower and less intrusive than the regulation of a tax penalty. In the former case, only the people trying to obtain the tax credit need to demonstrate their qualifications. In the latter case, everyone has to show whether or not they comply with the terms of the tax penalty.
I’m perfectly happy to pay for my open heart surgery. That’s why I have health insurance. I want you to have to pay for yours, and the only way that happens is if you buy into a health insurance program.
It’s ok to want that Chris. It’s not ok to have your desire fulfilled. The uninsured are not government employees at your beck and call. Nor have they signed some contract with a party representing you. They don’t have to give you an accounting for how they used your money. If you don’t like the way government welfare works, then either stop writing the checks or STFU. I’m tired of you using your vapid morality as an excuse to destroy the US’s future.
Chris – “I want you to have to pay for yours, and the only way that happens is if you buy into a health insurance program.”
Are you serious? You cannot possible believe that this is a true statement. I can pay for any of the health care I get without insurance. I do this by saving or borrowing money. I could also do this by getting other people to voluntarily give me some of the money. I could also choose to not have the heart surgery. These are things I want to be able to choose between. I do not want you or some other power made entity to tell me how to live.
Regarding “people couldn’t get heart surgery before” – the whole point of civilization is that we live better than our ancestors.
Ignoring the idea that maybe, just maybe, the system we’ve had is the reason that procedure is available for 150k, instead of 5 times that and half the survivability.
Curt and Carl – please tell me under what constitutional theory Congress has the right to regulate anything about drugs?
It doesn’t. I’m consistent. I believe Gonzales was wrongly decided, too.
I’m perfectly happy to pay for my open heart surgery. That’s why I have health insurance. I want you to have to pay for yours, and the only way that happens is if you buy into a health insurance program.
Nonsense. That’s certainly one way to pay for it, but there are others. You can save up ahead of time. You can borrow from your friends, or your neighbor. You can pay over time afterward, because the hospital billing office makes nasty calls to you every day for months until you agree to set up a payment plan. All of these things already happen.
The only reason you would ever be saddled with my health care costs is if (1) I refuse to pay them, (2) the government refuses to allow the hospital to discriminate against me on that basis and/or (3) the government transfers to the costs to you, as a taxpayer.
If your major goal is to avoid paying my health care expenses, all you need to do is put the power of government behind enforcing the implied contract when I go to a hospital and demand treatment. Let the hospital turn to the government to seize tax refunds and moveable assets (cars, savings accounts), garnish wages, et cetera. When the hospital is as assured of getting its bills paid as, say, the government is assured of getting its income taxes, then the hospital will no longer need to shift any costs to you.
Carl – what your essentially arguing is that somebody (hospital, bank or friends and family) lend people money.
Obviously you have never had to collect on a bad loan, and have no understanding of the collections process. News flash – the lender is rarely made whole when they have to collect assets. Repo men don’t work for free, garnishing wages requires legal fees and court battles; assuming, that is, that the mope has a job and you can find him.
It also means the lender gets paid over time. What this means is:
1) Up-front cost of procedures goes up – to cover the percentage of people who can’t or won’t pay, collections services, etc.
2) People now have to pay not only the hospital bill but interest on the same.
3) A bank or a hospital is still going to want the borrower to buy life insurance and list the lender as beneficiary.
It’s a spectacularly impractical idea.
what your essentially arguing is that somebody (hospital, bank or friends and family) lend people money.
Perhaps because you work in a bank, you equate Carl’s argument to your limited knowledge. That not the argument he is making unless you consider paying taxes “lending money to the Government”. Then again, you are a Democrat, so perhaps you expect payback.
Leland – having the government attempt to collect is actually worse than private collection. You will still have all the legal due process issues, and hand your collections over to somebody with no real incentive to actually collect.
Chris – Trying getting the government out of the business of telling health care providers that they have to provide care to someone who cannot pay for the service. I might be inclined to allow a law about emergency care being provided to everyone but only if it is needed to protect the life of that person for the short term so that a determination about probable payment ability can be made. A good part of the current health care problems stem from government interference to the point the a person with a splinter or mild sniffles can get free care at an emergency room. This not only drives up emergency room costs but makes the wait for real emergency take longer than it should.
A good part of the current health care problems stem from government interference to the point the a person with a splinter or mild sniffles can get free care at an emergency room. This not only drives up emergency room costs but makes the wait for real emergency take longer than it should.
Indeed. Most of us, who actually pay the cost of our healthcare, neither waste time or money on Doctor visits either in the office or ER for things like splinters and mild sniffles. We figure out pretty quick to take care of minor issues ourselves. When you don’t have to be responsible for the costs, or forced to pay the costs anyway, then the system will be abused. There simply would be no incentive not to abuse the system.
A good part of the current health care problems stem from government interference to the point the a person with a splinter or mild sniffles can get free care at an emergency room.
Keep in mind that the emergency room has a long wait for such things. Even if you don’t pay in money, you do pay in time. I doubt anyone is going to wait a few hours just to have a splinter looked at.
At the least, anyone who goes to the emergency room for medical treatment, is trying for something that has more value to themselves than spending that time elsewhere.