March 27, 2010

The Constitutionality Proof Is Worse than the Pudding

Justin Katz

Ed Fitzpatrick's column, yesterday, suggests that the healthcare law, including the individual mandate, is constitutional, but one needn't be as far right as Anchor Rising to be very concerned about the reason:

The Supreme Court has held that Congress "can tax for any legitimate reason, and certainly providing health care for all Americans is a legitimate reason," Goldstein said. "It was imposed based on Congress' reasonable conclusion that when some people don't have health insurance, it hurts them and shifts a lot of costs onto the rest of us. The tax is little different than taxes Congress imposes on companies that pollute, which are similarly based on the conclusion that pollution hurts everyone and could be deterred through a tax."

Also, the high court has upheld Congress' power to regulate "economic activity that substantially affects interstate commerce," Goldstein said. "And there is no question health care and health insurance affects interstate commerce."

So, not taking care of your own health is like large factories' polluting the air and your health-related habits also affect interstate commerce, making them a legitimate target for regulation and taxation. I took up this topic in a Rhode Island Catholic column a few months ago. The question arises: under such reasoning, what doesn't Congress have the authority to regulate?

Statists already would have answered "nothing," but shouldn't we find it frightening to stare down this dark slope? Now, not only is the authority asserted, but the federal government has a massive new entitlement to bolster and defend by making the American behave in particular ways.

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"under such reasoning, what doesn't Congress have the authority to regulate?"

Nothing, of course. And the President and his too-helpful Congress are in the process of attempting to prove this.

Congress doesn't have the right to do something just because it feels good to some people. Mr. Fitzpatrick's reasoning is scary and very wrong.

Posted by: Monique at March 27, 2010 7:08 AM

So what if some people don't have health insurance? They still have access to the best health care on the planet if they just stroll into any ER. And the uninsured hurt the rest of us either way. In fact they hurt the rest of us even more if we have to pay for their health insurance rather than just their health care because the insurance is more expensive than the care.

Monique is right, what couldn't the Obamation sycophants justify using reasoning such as this?

Posted by: Frank at March 27, 2010 9:43 AM

Readers who pay attention will notice that Justin nods in the direction of the real question (Does congress, under the commerce clause and the necessary and proper claue have the power pass the recent Affordable Care Act?) to an unanswerable question (What doesn't Congress have the power to regulate?)

The answer to the second question is: I don't know. You'd have to take it up on a case by case basis.

The answer to the real question is: Undeniably yes. People who think the courts are going to overturn this enactment are smoking some pretty good stuff.

People who make this clueless ER argument are not living in the real world. What happens when they leave the ER?

It's obvious that there must be an individual mandate to prevent freeloaders from gaming the system.

Posted by: Ken at March 27, 2010 10:17 AM

It's obvious that there must be an individual mandate to prevent freeloaders from gaming the system.

No, it isn't. If you forgo insurance, you are free to get sick and die on your own terms. Your decision, your consequences.

But most of us will not be that hardhearted. What about a middle ground - a requirement for catastrophic insurance and you pay the more routine costs? If you want to decrease those routine costs, you must address tort reform. No need to enrich gentleman Johnny Edwards and his ilk. We already have a jury in those cases - let's move them into the morbidity boards instead of the courtroom to forestall doctor and big pharma old-boy network responses. And to decrease costs, you must address the over-regulation of medicine. Either the states regulate some aspect (R&D, insurance) of medicine or the feds do, not both.

How about insurance where you agree not to sue in exchange for a reduced rate, and you are comped for actual losses with something that works like the federal vaccine program? We have a lot of alternatives, but the new law, a feculent steaming pile if ever there was one, is a very bad one.

Posted by: chuckR at March 27, 2010 1:04 PM

Fitzpatrick is the same type of "progressive" who opposes "workfare" because we shouldn't "force" people to work in return for directly receiving public welfare funds ... yet has no problem forcing people to procure health insurance based upon their indirect expense to the health care system.

This is also tacit admission that the government controls the health care system -- for if these individuals were only burdening a private health care system it wouldn't be Congress' purview.

Welcome to the collective, where all animals are equal, but some more equal than others.

No wonder Fidel Castro is praising Obamacare.

Posted by: Ragin' Rhode Islander at March 27, 2010 2:52 PM

Did you fall asleep in the 1920s and just wake up? The notion that Congress has the constitutional power to legislate in almost any area is hardly a new revelation.

And why is that "frightening"? You may prefer a different balance bewteen national and local legislatures -- but "frightening"?

I suppose you must, therefore, find Social Security and Medicaid "frightening" as well? Should we dismantle both programs? I don't see how you can rail against health care reform and be silent on these programs.

Of course, you can't blame the president for thse programs -- and they are extremely popular -- so as a populist and a partisan you dare not take those programs on.

Ah, must be nice to not be bothered by intellectual honesty and consistency.

Posted by: Pragmatist at March 27, 2010 2:54 PM

Really, Pragmatist. You're arguing that I'm afraid of taking unpopular positions? Really?

I'm perfectly happy to argue for dismantling Social Security and Medicare when those issues are the focus. I just lack the time to make every single blog post entirely comprehensive.

When you've conducted a thorough survey of my blog posts for the past eight years to determine my lack of consistency, I'll be grateful for a copy of the results.

Posted by: Justin Katz at March 27, 2010 3:12 PM

Yea Ken and how do the functionally brain-dead survive? Maybe you can give us a first hand account. I know that at any ER visit the patient with or without insurance goes home after they are treated and gets on with their life. In addition to any treatment rendered during the visit those who need it are given medicine, some are told to follow up with their physicians, some are explicit instructions on the availability of free clinics, free services and other goodies in the community. What did you think they were going to do, hang around waiting for the free buffet?

Posted by: Frank at March 27, 2010 4:09 PM

"You're arguing that I'm afraid of taking unpopular positions?"

Actually, in view of the politics in this state, isn't that pretty much the specialty of contributors and most commenters at A.R.?

Posted by: Monique at March 27, 2010 11:12 PM

Social Security and Medicare are BROKE, folks, we don't need another bleeding wound. BTW I heard today that after "taking over" student loans, the Fedos are going to BORROW dough at 2 "and change" and lend it at 6 percent, "profits" going to the healthtax law for the poor and downtrodden. Nice message for students, eh?

If there is a light at the end of the Chicago tunnel it is that most of the college kids I come in contact with have lost whatever love they had for Messiah, and realize that THEY are going to be paying for all this. They also admit they sing the left wing professor's party line to avoid "grade sanctions" for thinking the wrong way but that ain't how they feel.
The turnabout is interesting, especially from a "known democrat" lawyer's kid who has admitted his dad is STILL WAITING for all the new real estate work the 900 billion stimulis was "supposed" to produce.

Posted by: Bicycle Bill at March 29, 2010 11:11 AM

"What happens when they LEAVE the ER"???
Nice try, but the Federal law mandates
followup care as well. Is that system cheaper than the socialist takeover?? I guess it depends on how many swim over ion a given day.

Posted by: Bicycle Bill at March 29, 2010 11:14 AM
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