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Well, on health care mandates, that's THAT.

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1JGL53
Edited: Apr 15, 2012, 3:39pm Top

http://www.tnr.com/article/politics/102620/individual-mandate-history-affordable...

Except that it isn't.

The liars will probably win in the end.

And by liars I mean republicans.

Except Willard Romney, who cannot technically lie since he obviously holds no truths to be self-evident except his devotion to his narcissistic personality disorder.

2Bretzky1
Apr 15, 2012, 12:33pm Top

Randy Barnett has a very good answer to Elhauge's claim over at Volokh Conspiracy.

3Bretzky1
Apr 15, 2012, 12:47pm Top

And another post on the Act for the Relief of Sick and Disabled Seamen from the Volokh Conspiracy. This one by David Kopel from just over two years ago.

4JGL53
Apr 15, 2012, 3:46pm Top

Gee, B-1, I am unimpressed.

The repeal of slavery was unprecedented.

The amendment instituting prohibition was unprecedented.

The repeal of prohibition was unprecedented.

The amendment allowing women to vote was unprecedented.

The amendment requiring senators to be elected was unprecedented.

Etc.

In fact, I believe our constitution itself, in many ways, was unprecedented.

5Bretzky1
Apr 15, 2012, 4:55pm Top

So, you're not going to address the arguments made in the postings?

That is, that neither the Act for the Relief of Sick and Disabled Seamen nor Congress's direction that all men in the militia had to have their own firearms had anything to do with the question at hand in the ACA debate, yet the article to which you link tries to make that connection.

6JGL53
Edited: Apr 15, 2012, 6:24pm Top

> 5

They are analogous, they don't "have anything to do with one another" in some overtly precise sense. That was the point I was making in post # 5, and the orignal article makes the point the government can, does and will mandate a variety of acts of commission or omission.

Libertarian ideology bores me, much like marxism does. I live in the real world.

7Bretzky1
Edited: Apr 15, 2012, 7:22pm Top

They are analogous, they don't "have anything to do with one another" in some overtly precise sense. That was the point I was making in post # 5, and the orignal article makes the point the government can, does and will mandate a variety of acts of commission or omission.

It's not just in some "overtly precise" sense that they don't have anything to do with each other. It's in a broad and quite important sense.

Barnett's point in the post that I linked to in post #2 is that what Congress was regulating in the Act in question was how interstate commerce was being carried out. That is, Congress came across a group of people engaging in interstate commerce and decided to regulate how they went about their business, which is well within Congress's authority under the Commerce Clause (at least insofar as it pertains to Supreme Court precedents, which is a discussion for another day). With the individual mandate provision of the ACA, however, Congress is not regulating how people engage in commerce, but is instead forcing people to engage in commerce, which is quite a big and important difference.

The issue of the militia power that Elhauge invokes matters because it is a different power altogether from the one that Congress invoked in its assertion of the power to mandate the purchase of health insurance. A power that is necessary and proper for Congress to use in the exercise of one of its enumerated powers might not be necessary and/or proper for the exercise of some other enumerated power.

8JGL53
Apr 15, 2012, 10:47pm Top

If congress were to enact (government) single payer universal health care, and raised taxes to pay for it, would that offend your libertarian sensibilities less?

I am for single payer universal health care. I think Obama care, like Rmoney care, is a piss poor way of doing things. Private insurance companies act like they hate individual mandates, as do republicans (who were the major modern advocates of such, btw, until about three years ago) but it is to some degree a scam to require everyone to buy their "product". I think it constitutional but not that wonderful a solution to lack of health coverage.

But, of course, no one's opinion matters now on the constitutionality question except the nine in black robes. If they rule against then that is fine with me. Whatever. It was a crap "solution" anyway.

9timspalding
Apr 15, 2012, 11:06pm Top

Gee, B-1, I am unimpressed.

The repeal of slavery was unprecedented.

The amendment instituting prohibition was unprecedented.

The repeal of prohibition was unprecedented.

The amendment allowing women to vote was unprecedented.

The amendment requiring senators to be elected was unprecedented.

Etc.

In fact, I believe our constitution itself, in many ways, was unprecedented.


Absolutely. And all were AMENDMENTS TO THE CONSTITUTION! Yes, we all admit that an individual mandate would be constitutional if they amended the Constitution.

Talk about missing the point!

10Bretzky1
Apr 15, 2012, 11:51pm Top

If congress were to enact (government) single payer universal health care, and raised taxes to pay for it, would that offend your libertarian sensibilities less?

First, this isn't an issue of something offending my "libertarian sensibilities" as you call them. It's a question of the constitutionality of an act of Congress. The ideological bent of an act of Congress is immaterial to the question of whether it is constitutional.

Second, while I do have some libertarian leanings, the great majority of my views on most major issues fit quite nicely in the mainstream conservative or liberal camps. On this particular issue, for example, I am more positive than negative toward the ACA as a piece of legislation (leaving aside, of course, the question of constitutionality). Moreover, I certainly prefer the ACA as policy to a single-payer scheme (although I would prefer that to the current setup, which is undermining American economic competitiveness).

I am for single payer universal health care. I think Obama care, like Rmoney care, is a piss poor way of doing things. Private insurance companies act like they hate individual mandates, as do republicans (who were the major modern advocates of such, btw, until about three years ago) but it is to some degree a scam to require everyone to buy their "product". I think it constitutional but not that wonderful a solution to lack of health coverage.

My own opinion regarding the objections that insurance companies have raised regarding the ACA is that they don't actually oppose the mandate per se. Instead, they are using that as an excuse to try and have the whole thing thrown out. I think they see it as merely a step on the road to a single-payer system that would cut them off from the health insurance market, so they want to keep it from going into full effect.

But that's just one guy's opinion.

It's also not really correct to call the individual mandate a "Republican" idea. It was generated by a conservative leaning thinktank, but it was quite a controversial idea among Republicans when it was originally proposed. Some prominent Republicans latched on to it as a good idea, but there were others who were strongly against it. I don't even think it would be correct to say that a majority of Republicans were in favor of it, but it is true that it was overwhelmingly Republicans who were carrying the water for it until quite recently.

11Arctic-Stranger
Apr 16, 2012, 12:20am Top

Well, it was first enacted by a Republican governor, who is in all likelihood the Republican Presidential nominee.

Sounds like of Republican to me.

12Lunar
Apr 16, 2012, 3:12am Top

#11: Sounds like of Republican to me.

Which is about as meaningful as saying it's a "mormon" idea.

13jjwilson61
Apr 16, 2012, 10:14am Top

2> And yet it *is* a precedent for the gov't telling people that they have to buy something, which is what the Republicans say is unprecedented. It may not be an exact precedent, but then few things are.

14Bretzky1
Apr 16, 2012, 11:08am Top

And yet it *is* a precedent for the gov't telling people that they have to buy something, which is what the Republicans say is unprecedented. It may not be an exact precedent, but then few things are.

Upon further review, neither of these acts of Congress actually required people to buy something.

The Act for the Relief of Sick and Disabled Seamen instead levied a tax on the owners of ships for money that was then used by the government to provide health care services for sick and disabled seamen. It did not require the ship owners or the sailors to buy anything.

The militia law also did not require people to buy anything. All it did was require people to have their own weapons for use in the militia. Such weapons could be bought, but they could also be borrowed or received as a gift. They could also be provided by the state government in which the person lived.

Moreover, those who argue against the constitutionality of the individual mandate aren't saying that Congress has never, ever exercised that power. What they are saying is that it has never exercised that power in the way in which Congress is doing so here. That is, they are forcing people to engage in commerce without any reference to the regulation of interstate commerce. That is what they are claiming is unprecedented.

16JGL53
Edited: Apr 16, 2012, 3:01pm Top

> 15

Here's the telling point for me:

".....Congress has required that individuals be given emergency care without regard to their ability to pay. As a result, and again unlike other markets, uninsured individuals who are unable to pay directly for needed medical services necessarily shift the cost of those services to others—to health care providers, the government, individuals with insurance, and taxpayers...."

Thus we already have socialized medicine - for all citizens.

The system we have in place now passes on the cost of others health care to me. And vice versa.

E.g., the goverment now pays (i.e., with tax dollars) hospitals to provide health care services to the uninsured - after the fact as a reimbursement.

The only thing left to argue is how to do it the most cost effective way.

The way it is done now really sucks. So, if not "Obamacare", then what?

The republican dream of just letting people die in the street is not going to happen. So, again, what is the viable alternative to "Obamacare"?

17Bretzky1
Apr 16, 2012, 5:07pm Top

#15

If the Court upholds the constitutionality of the mandate provision, that is basically how it will be done. The commerce that Congress is trying to regulate will be defined as "health care" and not "health insurance."

It's probably the strongest argument out there for constitutionality given the Court's current case-law. My sense from listening to the arguments is that Scalia will not go for it and Thomas probably won't either (although, as is typical for him, he didn't have much, if anything, to say during the argument). Ginsburg, Sotomayor, and Kagan seem like they want to find it constitutional without having to find some limiting principle and are unlikely to compromise on that (although, both Sotomayor and Kagan are new enough to the Court that I don't have a firm grasp on their judicial temperament yet).

The actual content of the Court's decision will, therefore, hinge on the negotiations between the four members who are the up-for-grabs votes on this issue: Alito, Breyer, Kennedy, and Roberts. If they can come to an agreement, it will be for a very narrowly written opinion in either direction, but that would likely lie on the side of constitutionality (it's doubtful that Breyer would join any opinion, no matter how narrowly written, that does not uphold constitutionality). And, if they do, it will be based on the same argument that Monaghan is putting forward in that article.

18Bretzky1
Apr 16, 2012, 7:05pm Top

One more thing regarding the Court's decision on this issue.

We often hear it stated that the Court will likely come down, say, 5-4 or 6-3 on this case. That is true, of course, in the sense that every Justice must cast a vote on the question of the judgment of the case (i.e., whether the individual mandate is constitutional).

But there is another layer to Supreme Court opinions below that of the judgment. It's the level of the reasoning behind the judgment. It's quite possible for two Justices to come to the same judgment on an issue, yet to disagree as to the reason why the judgment should be made.

In such situations, you often get decisions that are not strictly 5-4 or 6-3, but are more like 4-2-3 or 3-3-3 or 4-1-4. That is, five or six Justices will agree in the judgment but they will split on the reasoning, which decides the case before the Court, but leaves the lower courts searching for actual precedent for the decisions they will be called on to render in the future. The abortion cases always come down like this. Planned Parenthood v. Casey is a prime example. There was the Court's opinion handed down by O'Connor, Kennedy, and Souter, but Stevens, Blackmun, Scalia, and Rehnquist all wrote opinions that both concurred in and dissented from the judgment. And White and Thomas signed on to both Scalia's and Rehnquist's opinions and Scalia and Rehnquist signed on to each other's as well. There were parts of the Court's opinion that had the force of law but others that couldn't get the requisite five Justices to sign on and so were not binding on lower courts.

Long story short, I have a strong feeling that the ACA case is going to turn out that way. It won't be as messy as the abortion cases invariably turn out to be, but it won't be pretty either.

19richardbsmith
Apr 16, 2012, 7:25pm Top

The distinction between health care and health insurance seems to me to be real distinction. I think health insurance has long ago ceased to be insurance in the strict sense of pooled risk.

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