U.S. Politics, 15

[Former Lord of Winterfell]

A judge, to strike down the Act, must conclude that no reasonable Congress could have concluded that the situation needed nationwide, comprehensive regulation.

That is just terrible reasoning. A reasonable Congress could perhaps conclude that the situation required "nationwide, comprehensive" regulation. But a reasonable Congress could not have concluded that an individual mandate was the only solution that would work. A tax paired with a credit would have had the same practical result, but would have been accomplished in a way that was more Constitutionally sound.

It woudl be fun to ask about that at oral argument, and ask why they didn't just do it that way. "Well, we didn't think the voters would be happy with a tax, so we figured we'd just order them to do it directly." Apparently, that would be the truthful answer, but I don't think that's going to help with the whole "necessary and proper" argument.

[Lord Mord]

FLoW,

The bogeyman that prices will rise so high absent reform that insurance companies will collapse, and nobody will have insurance simply can't be true. Because under that doomsday scenario, we'd also have deserted hospitals, masses of doctors, nurses, and other health care people unemployed because nobody is getting health care, drug companies closing up shop because nobody can afford drugs, etc. And at the same time, masses of people with no care. Even a very basic understanding of how markets work is enough to know that such a scenario will not happen. I suppose it is possible to approach such a situation if the government enacts absurd laws that completely destroy market mechanisms, but that's not what we had pre-ACA.

I see what you mean. Since I don't imagine proponents of single-payer have all ignored the realities of a marketplace (at least not those so basic as you underline here) I wonder what the real doomsday scenario is supposed to be at the end of the escalating costs.

[TerraPrime]

FLoW,

I see what you mean. Since I don't imagine proponents of single-payer have all ignored the realities of a marketplace (at least not those so basic as you underline here) I wonder what the real doomsday scenario is supposed to be at the end of the escalating costs.

Dunno. Looks pretty doomsday-ish to me as of now.

But then, doomsday scenario is also used by the other side, claiming that UHC will lead to intolerably long queues for treatment, lack of innovative drug discoveries, and death panels.

[Ser Scot A Ellison]

FLOW,

Under N&P analysis if another method that would pass Constitutuional muster is available to Congress does that mean the Supremes must reject the method put into law?

[Former Lord of Winterfell]

I see what you mean. Since I don't imagine proponents of single-payer have all ignored the realities of a marketplace (at least not those so basic as you underline here) I wonder what the real doomsday scenario is supposed to be at the end of the escalating costs.

I don't think there is a real "doomsday" scenario. I think the "end point" is that we're just paying a lot more than we'd like. Price increases will stop at the point where revenues start declining because too many people are being priced out.

FLOW,

Under N&P analysis if another method that would pass Constitutuional muster is available to Congress does that mean the Supremes must reject the method put into law?

I'm not at all sure that N&P jurisprudence is sufficiently well-developed to answer that question because the Court hasn't been pressed with that argument yet, at least as far as I know. But it's pretty clear if you read the Atlantic article that he is assuming true necessity is required. The article discusses mandatory vaccinations in the event of a smallpox biological attack, and talks about the necessity of such vaccinations. But if you could accomplish the same goal with reform via a tax rather than a mandate, then the mandate isn't a necessity, and the smallpox vaccination argument falls apart.

He also discusses Kaganss confirmation testimony:

Last summer, Sen. Tom Coburn asked Supreme Court nominee Elena Kagan whether Congress could require individuals to eat vegetables three times a day.

The cheeky Kagan responded, "Sounds like a dumb law." And a law that requires eating vegetables (or joining a gym, or subscribing to a newspaper) really is a dumb law. There is no overarching national necessity behind it. It's hard to imagine Congress claiming with a straight face that vegetable portions were an emergency, or that they needed to be regulated as part of a comprehensive scheme.

And using that exact same example, a mandate is not necessary either, because there are other ways to accomplish the same goal. Just as there are other ways to accomplish improving the health of individuals (which some would agree is a legitimate exercise of Congressional power) other than requiring the eating of vegetables. So I think his argument for the mandates doesn't even meet his own standards, probably because he failed to consider equally effective alternatives.

Of course, I think there is a very good argument that the public health argument in favor of requiring vegetables 3 times a day is actually stronger than the argument for a mandate, because eating more vegetables clearly improves health, and what other alternative way is there to ensure that's occuring? So in additional to finding his argument inapplicable under his own standard, I also think that the whole "eating your vegetables" and other mandates argument can fail simply standing on their own.

And sorry, Trisk. I didn't intend to make it appear that was your point rather than the authors. My apologies.

[The Progressive]

A pretty good column today in The Atlantic making that argument that Congress can make this mandate under the Commerce Clause.

I think the most persuasive part is this:

What if these "inactive" individuals promise will really never, never, contract a catastrophic sickness or suffer a devastating injury, that neither they nor their children will ever, ever appear in an emergency room as uninsured patients? That rings as hollow as my hypothetical objectors' promise not to get or spread smallpox. These things aren't voluntary; taxes, sickness, death--you can't opt out, no matter how you try. And, I'm sorry to the hard-core libertarians out there, you cannot agree to waive life-saving care for your children. That argument was over long ago.

Earlier some posters brought up the mandatory provision for emergency medical service which people who doesn't want to be subjected to the mandate must opt out of ......... and I don't think anyone is dumb enough to think that the majority of voters would want to opt out of that.

[Ser Scot A Ellison]

Lev,

But EMTALA is a guarañtee of treatment not absolution from the responsibility to pay for that treatment.

[The Progressive]

Lev,

But EMTALA is a guarañtee of treatment not absolution from the responsibility to pay for that treatment.

Scot,

Try selling that to deficit-hawks or fiscal-conservative types.

[Ser Scot A Ellison]

Triskele,

That's true, but under the exizting legislation there is nothing to stop these people from signing up for insurance on their way to the ER.

Lev,

I'm not saying the system makes financial sense. I'm saying, as written, the people receiving treatment are responsible for their treatment.

[Former Lord of Winterfell]

It's not a problem, I just wanted to clarify. Also, I wasn't posting that article so much as an endorsement of my own views. I am in favor of the mandate as a health care policy, but for as much as I'm into US politics I feel that the law is one of my weakest areas. I'm really in the process of educating myself here. And I do find it interesting that the decision thus far seems to be pretty split based on party ideology.

The truth is that there is something of a blank slate out there on mandates, so there isn't any really strong precedent. I've gone from thinking overturning was unlikely to now thinking it might be 50-50, because as much as people jumped on Coburn for the vegetable analogy, he really was on to something with it. And Scalia is just cheeky enough to raise the same question at oral argument. The argument that the government can mandate anything as long as it is in advancement of a legitimate government goal opens up a gigantic can of worms. If you agree as a legal issue that improving the health of Americans is a legitimate government interest, and that as a factual issue, improving the diet of Americans would improve their health, then what would be the constitutional objection to mandating a certain diet? I honestly can't think of one.

Can anybody?

[The Progressive]

If you agree as a legal issue that improving the health of Americans is a legitimate government interest, and that as a factual issue, improving the diet of Americans would improve their health, then what would be the constitutional objection to mandating a certain diet? I honestly can't think of one.

Can anybody?

You mean besides the nonexistent of any such law ratified by both chambers of Congress and signed into law by the President?

I don't think you're trying hard enough, lol.

[The Progressive]

I'm not saying the system makes financial sense. I'm saying, as written, the people receiving treatment are responsible for their treatment.

And the mandate would held them responsible for such a scenario, no?

[Ser Scot A Ellison]

Triskele,

I've railed againsthe expansive reading of the Commerce Clause from Wickard for years. Long before Pres. Obama has been a player in politics therefore long before this was an issue.

[Former Lord of Winterfell]

Back to the mandate. Jonathan Chait makes what I think is a crucial point for the side that argues that the mandate should be allowed (he also reminds us how this idea was never a conservative bugaboo until it was a key element of Obama's health reform.

Well, the only reason there is a "right" to be treated in an emergency room is because of another law requiring that, which is bootstrapping one piece of legislation on another to create a government "right" to do something.

But forget all that for a moment. The biggest problem with Chait's argument is that virtually everything each of us chooses not to do as individuals affects other people. If you accept the premise that "it will affect other people if you don't do X" is sufficient justification for the government to direct you to do something, the reach of government authority becomes unlimited. So, you end up here:

But of course, the decision not to eat a balanced vegan diet is the very opposite. Those who choose to eat fatty meats and other unhealthful foods are forcing the rest of us to cover their costs if they exercise their right to be treated under health insurance. They are also forcing the rest of us to pay higher insurance rates..

I really don't see any analytical distinction on a constitutional level at all. Anyone care to take a stab at that?

I suppose that might sound all fine and dandy to the food nazis out there, or to people who really like this health care plan. But what happens when you've acknowledged this government right to force you to engage in certain behaviors, and a political group you don't like is now setting up new mandates --that you don't like -- justified by the exact same logic? Do we really want to go down this road?

[Ser Scot A Ellison]

Triskele,

I suppose Wickard is more a Libertarian bugaboo than Conservative.

[Shryke]

Actually, I initially said it was "highly unlikely", and then said that I'd reconsidered and think it's quite possible. But in any case, who cares? I think it is a not insignificant risk that could have been avoided, and wasn't. The error, I think, may have been overconfidence coupled with arrogance. Overconfidence in the sense they were convinced public opinion on it would shift, and arrogance in believing that the Supreme Court (that ultimately will probably decide this) wouldn't dare strike this down. The two are related in that the lack of a shift in public opinion (the polls have gone down rather than up) may affect the willingness of Kennedy to strike it down, because I suspect he'll find the legal arguments persuasive otherwise.

But apparently it's only become a risk apparently, since you figured out a way to frame it such that it makes the people who passed it looked dumb. Before that it was unlikely. A sentiment I'm sure those who wrote the law agreed with when they passed it.

I mean really, suddenly this becomes a huge deal because a hack of a judge ruled against it in a case that screams conflict of interest? Where was all the doom and gloom for the other cases against this law? Please, this is all bullshit.

Personally, I think selling a "tax" that includes a 100% credit wouldn't be too hard. Or no harder than a mandate, at least. Had the Administration pointed to the potential court challenge on the mandate issue for justification, I don't think they'd have lost enough votes in the House to sink it, although I suppose we'll never know.

Who said anything about votes in the House? It's about the public's perception. And the public don't like taxes.

The only reason they needed those new people were to finance those people who would be gaming the system otherwise. If the insurance companies don't have to accept those people who game the system, then the mandate would be nothing but a windfall, and I don't consider denying insurance companies a windfall as "fucking them over."

All your proposal does is shoot the already insane administrative costs through the roof.

No it wasn't -- some wage stagnation attributable to higher health care costs is not a "collapse" of the system. You're doing the same thing Klein was in assuming that "current trends" will continue indefinitely absent government intervention. Anyone remotely familiar with how demand curves operate at the extremes know that's ridiculous. As I said, do you seriously think hospitals will just sit vacant, and health care providers all be unemployed, because nobody can afford the astronomical rates they supposedly would be charging? Nobody in their right fucking mind will have their prices so high that nobody can afford them.

Shryke, health care is a good that benefits people, just like going to the movies or getting a nicer car or house. What that data shows is that people are willing to pay for high quality health care, even at the cost of higher net wages. They love their easy access, lots of MRI's, etc. But assuming that they'd be equally willing to keep doing that no matter what percentage of their budgets is eaten up by health care is assuming a completely inelastic demand curve, which is absurd. But that's the bullshit Obama and Klein peddle because they want to convince people that something drastic must be done to prevent a "collapse".

:lol: The costs are ALREADY that high. Look at bankruptcies.

Health Care does not function anything like an ideal market and you won't find a non-hack economist you says otherwise. Should I quote your buddy Hayek again on this again?

I mean, fuck, you are arguing that health care is not an incredibly inelastic demand curve? Just .... holy shit. /facepalm

[Ser Scot A Ellison]

Triskele,

Have you tried to get table salt or something made with transfats in NYC recently?

[The Progressive]

I could be wrong, but I just don't think the government will go anywhere further down this rabbit hole even if the mandate holds. I asked earlier if anyone knows if the governments with health mandates in Switzerland and Holland (and I'm pretty sure Germany) have moved on to mandate the purchase of anything else. I'd still love to know the answer to that question.

Clearly the unique snowflake that is America would make it possible for the government to go further down the rabbit hole.

Lol, all kidding aside, I think you did a pretty good job here at quickly debunking this boogyman that Flow et al love to trot out so much.

[Ser Scot A Ellison]

Triskele,

Why not try a ban via a mandate? It's for people's own good after all.

[Ser Scot A Ellison]

Triskele,

Not really. I don't care for the Government, at any level, telling me what I may and may not eat.