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obamacare Archive

Monday

31

January 2011

3

COMMENTS

Judge Vinson Piles On

Written by , Posted in Health Care, Welfare & Entitlements, The Courts, Criminal Justice & Tort

It comes as no surprise at this point, but the major news of the day is that the Judge from my hometown – and whose wife, incidentally, was my 4th grade teacher – has become the second to strike down Obamacare.

Unlike the previous ruling, Judge Vinson found that the unconstitutionality of the individual mandate was enough to invalidate the entire law, as it lacked a severability clause.

Although obviously newsworthy, I’m not sure this ruling changes anything. The Supreme Court was almost certain to take the case already. Sadly, the fate of Obamacare may ultimately be decided by what side of the bed Justice Kennedy rolls out of before oral arguments.

For more on the ruling:

Thursday

20

January 2011

0

COMMENTS

Another Inane Constitutional Theory

Written by , Posted in Health Care, Welfare & Entitlements

The latest crack-pot interpretation of the Constitution to justify Obamacare comes from Rep. John Lewis, who cites the Preamble, the Declaration of Independence, and the 14th Amendment to the Constitution.

Rep. John Lewis (D-Ga.) said on Tuesday that the government should require individuals to buy health insurance and cited the Preamble to the Constitution, the Declaration of Independence’s “pursuit of happiness” language and the 14th Amendment as the sources of Congress’ authority to enact such a mandate.

“I think people should be required to get health insurance. We require people to get insurance for their automobile state by state but the federal government has an obligation to encourage by law, moral persuasion, to get people to get health insurance,” Lewis told CNSNews.com on Tuesday after a House Democratic Steering and Policy Committee hearing in opposition to Republican efforts to repeal the health-care law enacted last year.

CNSNews.com also asked Lewis what part of the Constitution gives Congress the authority to require individuals to buy health insurance.

“Well, when you start off with the Preamble of the Constitution, you talk about the pursuit of happiness,” said Lewis. “You go to the 14th Amendment–it’s equal protection under the law and we have not repealed the 14th Amendment. People have a right to have health care. It’s not a privilege but a right.”

First of all, law is not “moral persuasion,” it is force. But let’s look at the Congressman’s theory, taking each relevant text one at a time. Here’s the Preamble of the Constitution:

“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

There are no grants of authority in the Preamble. Rather, it makes an affirmative case for the existence of government at all. It explains why they are doing what they are doing in signing any Constitution in the first place. This was important given the context of the founding of the U.S., and the desire of the Founders to establish a legal government with the consent of the governed. They were establishing a contrast with divine right, the historical justification of government until that point. So there is nothing useful to be gained by citing the Preamble as a source for a specific governmental action. It provides none.

Strike one.

Next, the relevant section from the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

As before, the Declaration establishes no specific authority for governmental action. Nevertheless, it is an important tool for understanding the purpose and scope of our government, so let’s go ahead address his claim contextually.

This sentence is clearly describing the natural rights of man as they exist prior to government – specifically, the rights to life, liberty and the pursuit of happiness, with the latter right being historically interpreted to refer to rights of property. It means much more than just that, describing man’s right to live for himself and pursue the improvement of his station toward whatever goals please him. But in terms of constraining government force, protection of property rights serves as a means to protect the pursuit of happiness.

Regardless, it doesn’t really matter what ‘pursuit of happiness’ means in this context, because the sentence is not describing a source of government power, but a restraint upon it. These natural rights are said to exist before government, and therefore anything government tries to do cannot be justified by this clause alone, it can only be contradicted by it. As if this weren’t obvious enough by the plain meaning of the words, the fact that it was used to throw off an oppressive government should make it clear. It says simply: these are the rights that man has without government, and any legitimate government must recognize as such and not infringe upon them; to do so is to render said government illegitimate.

Strike two.

Finally, we come to the actual source of specific legislative actions, the Constitution. The 14th Amendment contains five sections, but it really only comes down to one. First, the text:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

As you can see, Sections 2-4 are completely irrelevant, while Section 5 only authorizes legislation based on the authority of the other sections. That leaves us with Section 1, the last chance for Rep. Lewis to find even the slightest shred of authority for an individual insurance mandate needed to avoid complete embarrassment.

The first sentence is again irrelevant, as it deals with citizenship. Very little is left now, so surely Rep. Lewis’ authority must reside herein.  But what’s this? There’s no source of new governmental powers there! All the remainder of the section does is restrict the power of the state governments. Here it is again, with phrases in bold:  “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

These are all constraints on state governments, passed to prevent state level infractions of Constitutional rights.  Section 5, the sole instance in anything he cited of an actual grant of legislative authority, merely authorizes Congress to legislatively enforce these constraints on the states.

Strike three.

There’s whiffing and then there’s whiffing big time, and this was big time. I’d be hard pressed to pick three more irrelevant clauses to health care legislation than Rep. Lewis has done here.

How sad it is that John Lewis, a leader of the civil rights movement and a man who has come to symbolize the importance of restraints on the ability of governments to violate rights, has so thoroughly failed to understand the source of the protections he now enjoys.

Wednesday

29

December 2010

1

COMMENTS

The Danger of ‘Death Panels’

Written by , Posted in Big Government, Health Care, Welfare & Entitlements

That whole issue of “death panels” is back:

On Sunday, Robert Pear reported in the New York Times that Medicare will now pay for voluntary end-of-life counseling as part of seniors’ annual physicals. A similar provision was originally included in ObamaCare, but Democrats stripped it out amid the death panel furor. Now Medicare will enact the same policy through regulation.

We hadn’t heard about this development until Mr. Pear’s story, but evidently Medicare tried to prevent the change from becoming public knowledge. The provision is buried in thousands of Federal Register pages setting Medicare’s hospital and physician price controls for 2011 and concludes that such consultations count as a form of preventative care.

The office of Oregon Democrat Earl Blumenauer, the author of the original rider who then lobbied Medicare to cover the service, sent an email to supporters cheering this “victory” but asked that they not tell anyone for fear of perpetuating “the ‘death panel’ myth.” The email added that “Thus far, it seems that no press or blogs have discovered it, but we will be keeping a close watch.”

Anytime proponents of a policy are cheering the fact that no one knows about it, there’s cause for concern. But with the rhetoric so heated, it’s not always clear what, exactly, the concern is here. So let’s break it down.

Those who criticize conservatives for talking about “death panels” say that end-of-life counseling is an important service that should be available to those who want it. So far so good. Elderly or terminally ill patients have very difficult decisions to make, decisions which might not always result in more treatment. It is only prudent that they would seek the advice of their doctors for such matters.

If that was the end of the story, those decrying talk of “death panels” might technically be right. But here’s where the legitimate concerns come in.

With passage of ObamaCare, government has become an even larger stakeholder in virtually all medical decisions. What you personally decide as a participant in Medicare impacts the government’s bottom line, and thus also the ability of politicians looking to bolster their fiscally irresponsible images to get reelected.

Government additionally has a lot more power than other stakeholders. It has a lot more than the doctors, who rely on the stream of Medicare payments to stay afloat, and certainly more than you, the patient. So as time goes on, whose interests do you think are going to be served?

The only way to prevent politicians from expanding the role of government in end-of-life counseling is to not give it a role in the first place. This is why it was so concerning when such provisions popped up in ObamaCare, a bill that expanded the government role in health care across the board.

From what I hear, the new regulations seem less concerning than the initial provision. Unlike what was attempted with ObamaCare, these regulations provide no prescriptions concerning the content of end-of-life discussion, but merely allow that they will be covered under Medicare. I’m thus tentatively willing to consider that they may not be of significant concern.

However, liberal critics ignore legitimate concerns when they dismiss discussion of “death panels” as nothing more than overblown political rhetoric. There are very real dangers from allowing the government both a financial incentive to deny medical care and the authority to make it happen. I can think of few easier targets for a government looking to save money than elderly patients weighing whether or not they should continue receiving expensive medical treatments to extend their lives just a little bit longer.

Monday

13

December 2010

1

COMMENTS

Court Recognizes the Obvious: Individual Mandate Unconstitutional

Written by , Posted in Health Care, Welfare & Entitlements, The Courts, Criminal Justice & Tort

U.S. District Judge Henry E. Hudson has delivered as expected and ruled that the individual mandate is unconstitutional (the full ruling is available here). Even under the modern Commerce Clause jurisprudence, which itself has long ago turned the clear meaning of clause on its head, there has never been recognized any legal authority compelling individuals to purchase a particular good or service.

The oddity of the ruling is that it didn’t throw out the entire law, despite the lack of a severability clause in the original bill (which would make provisions for severing clauses found unconstitutional so that the bill itself could remain intact). As a practical matter, however, the lack of an individual mandate scuttles the entire affair. The question now is: what will the higher courts do?

Wednesday

4

August 2010

0

COMMENTS

Rejected: Missouri Gives Obamacare A Resounding No

Written by , Posted in Health Care, Welfare & Entitlements, The Courts, Criminal Justice & Tort, The Nanny State & A Regulated Society

As I predicted back in December, the fight over Obamacare has moved to the states.  Several big developments have hit recently which do not bode well for supporters of unconstitutionally government-run health care.

First, a Federal District Court Judge Henry Hudson rejected the government’s attempt to dismiss Virginia’s lawsuit against Obamacare (full decision here).  The establishment line was that legal challenges to Obamacare were just partisan grandstanding, and that of course government has the power to tax a non-economic non-activity through the Commerce Clause.  They were wrong as Judge Hudson noted that Obamacare’s constitutional argument “literally forges new ground and extends Commerce Clause powers beyond its current high watermark.”  Whether or not the court eventually reaches the right conclusion and declares Obamacare’s individual mandate to be unconstitutional remains to be seen, but this is an important first step.

On top of this, the voters in Missouri turned out yesterday to give Obamacare their disapproval.

Tuesday’s 71 to 29 percent blowout vote on Proposition C left no doubt where voters stand as they handed President Obama’s health care law a stunning rejection.

The proposition attempts to protect Missourians from the new federal mandate to buy insurance.

It also tries overturning the new federal prohibitions on insurance companies selling insurance directly to people.

This is just the beginning of the long fight against massive government expansion and government-run healthcare.  But so far, the battles are being won by the side of smart policy and Constitutional governance.

Monday

22

March 2010

0

COMMENTS

Post-Obamacare

Written by , Posted in Health Care, Welfare & Entitlements

Gazing into my crystal ball, I see the world as it exists post-Obamacare.  The health insurance industry collapses.  Doctors are closing their doors.  Democrats are out of power.  I suppose you could say it’s a mixed blessing.

It is not hard to figure out what the health care reform bill will do to health care itself.  Using redistribution, the bill will increase consumption of health care.  At the same time, the additional burdens placed on doctors who can’t stay afloat on what Medicare pays will result in many leaving practice altogether.  Greater demand + dwindling supply = skyrocketing prices.

While this is happening with health care, health insurance will be stuck between a rock and a hard place.  On the one hand the federal government has just mandated the purchase of their product, delivering millions of new customers.  Maybe.  The problem there is that enforcing the mandate will be nearly impossible, if the courts don’t strike it down altogether.  Federal regulations also now prevent insurers from refusing coverage based upon preexisting conditions.  The market response, of course, is to charge higher prices to those with greater risk.  But many state regulations don’t allow price discrimination.  This means that health insurers are basically being forced to give charity.  Forcing insurers to take high cost customers + denying them the ability to charge them appropriately = bankrupt insurers.

So, from above we now have bankrupt insurers and skyrocketing health care costs.  Skyrocketing costs + bankrupt insurance = a broken system in which nearly everyone will suffer.

Monday

21

December 2009

0

COMMENTS