Today is Victims of Communism day. While the Chinese Communists under Mao murdered more people than anyone else, today is the day to remember all the victims, not just those of Mao, Stalin, and Castro.
Thanks to BufordTJustice1 for the following information on Republican Health Care provision reform plans, in response to a Volokh commenter (troll?) claiming that “the Republicans have no plan”:
HR3400 sponsored by Tom Price detailed at the following URL:
The formal HR3400 bill can be viewed at:
Another GOP bill for health care reform is HR3962 by John Boehner which is 219 pages in length. The URL is:
The Pledge to America also provides details of their ideas for alternative legislation. That has been available since September 23, 2010.
Also, John Boehner held a national Republican address on October 31, 2009 outlining GOP ideas for health care reform.
Mitt Romney has described his Medicare plan:
Paul Ryan released a Medicare plan which was soon followed by a revised plan with Ron Wyden.
Most recently, Paul Broun released his replacement plan.
You speak of making things worse? The new cost shifting will blow away the current cost shifting by an order of magnitude. Subsidies and tax credits alone will cost $777 billion for the first seven years. Many if not most of them will pay nothing (or almost nothing) for their premiums. Then there’s the Medicaid expansion, estimated to cost $408 billion (state and federal combined). Obamacare preserves and reinforces the old cost shifting, while adding $1.2 trillion in new cost shifting.
The mandate will do absolutely nothing of any appreciable amount to resolve the current cost shifting and will make it massively worse:
About $30.2 billion of the $43 billion cannot be remedied by the mandate and will continue on just like before. That leaves $12.8 billion which is 0.5% of the nation’s health care costs, leaving 99.5% of health care expenditures unchanged. Unless you believe the mandate will work perfectly (which it won’t), it will not even come close to resolving $12.8 billion, especially once the word gets out how easy it is to game the system (see below). The government will be lucky if a small fraction of the $12.8 billion is even remotely alleviated, reducing the effect of the mandate to a purely symbolic token. This amount in relation to the total costs is virtually invisible and will have no tangible effect on cost shifting.
Those few not exempt from the mandate, not eligible for Medicaid and would not receive any tax credits or subsidies that don’t want to buy insurance now will not change their minds and will continue to freeload. Not only will the fine be less than the cost of the premium, but why even pay the fine if there is no arrest, lien, audit or garnishment allowed by Obamacare? All the IRS can do is withhold a tax refund.
Already, 49% of the country doesn’t even pay federal income tax in the first place. Out of the 51% who do, how many are owed a refund? Out of those, how much are they owed (i.e. even less than the amount of the fine)? Even if they pay the fine, they are still not in the insurance pool to spread the cost around which totally defeats the purpose of the mandate and Obamacare itself.
By the way, any exchanges run by the federal government will result in nobody in those states receiving tax credits/subsidies to buy insurance. The hasty, sloppy and corrupt writing of the bill only allowed this support for exchanges run by the states. This will result in the employer mandate going down. Business will sue if they are fined for not providing health insurance to employees who are not even eligible to receive benefits by going on the exchanges.
Did you also know Medicare Advantage is being propped up artificially by a corrupt and possibly illegal expenditure of $8.5 billion to sustain it only past the election? After the election, the plug will be pulled, screwing over seniors all across the country.
Michelle Obama took her daughters to Africa for a safari, at a cost to the taxpayers of over $400,000. She listed her daughters as “senior staffers” in the paperwork for the trip.
Part of this is about the appalling sense of entitlement possessed by those on the Left. But to me the more amusing part is the juxtaposition with President Obama’s dog eating. When Senator McCain joked about it on Twitter, and when others have joked about it, the Democrats response has been “how dare you pick on a 6 – 10 year old?” Now, silly me, I thought President Obama was in his late 40s / early 50s, and in his 40s when it wrote the book talking about his dog eating. But this is the Obama Administration, where the children are “senior staffers”, and the President is a “child”.
There’s been a lot of arguing recently about whether or not the Federal Government should have the power to force individuals to buy health “insurance” policies they don’t want, and don’t need (I don’t need a $5,000 / year “comprehensive health insurance” policy if I’m a 25 year old male with no health problems. Catastrophic coverage, maybe, “comprehensive” coverage? No). The Left is in favor, the right is opposed.
From Tom McGuire I just learned about a different fight. In this one, the State of Florida has decided that it doesn’t want to give cash assistance to drug users, and so is requiring drug tests from anyone who wants to get cash assistance (it pays for the drug test, if you pass it). The Left is outraged at this.
I’m trying to wrap my mind around the mentality that approves of the first, but not the second. The best I can come up with is that, to the Left, all money, everywhere, is theirs. Not the government’s, most certainly not the property of the individual who made it, all money belongs to the Left. Don’t want to spend your own money buying an unneeded “health insurance” policy? Tough. They want to cut costs for people they care about more than they care about you, so you have to pay. Don’t want to give cash to drug users? Tough. They like drug users, esp. ones who’ve so screwed up their lives that they can’t survive without outside help, so the drug users get your money.
Any other justifications?
Ann Althouse wrote “I’d like to know more about the repeal of the 2009 Equal Pay Enforcement Act, which I referred to a couple posts ago.”
Since her Capcha system never lets me though, I’ll respond here:
What’s to know? it’s a bad law. You want “equal pay for equal work”? Great. Do equal work.
You want to get paid as much as a cop? be a cop. You want to get paid as much as a garbage man? Great. Be one (or a garbage woman).
No bureaucrat, no court, no lawyer is qualified to judge whether or not two jobs are “equal”. That is the job of the market, and the job of the individuals who make up the market. You don’t like the pay for your job of choice? Find a different one.
Two jobs require the same educational attainment, but one gets paid more than the other? Sounds like more people want to do the lower paying job, and fewer want to do the higher paying one, so the higher paying one has to pay more to get people.
Good for Gov. Walker, and the Republican controlled Legislature, for killing it.
No, this is not a post about the medicinal values of mushrooms. This is about the 2001 Supreme Court ruling that a “Commerce Power” “corporate mandate” was unconstitutional, and what it should say about the Constitutionality of the Individual Mandate (hat tip John Hindraker)
In a 6 -3 decision written by Justice Kennedy, UNITED STATES v. UNITED FOODS, the Supreme Court struck down the Mushroom Promotion, Research, and Consumer Information Act mandate, ruling that the USDA could not force companies to give money to a program to “strengthen the market” for the commodity they produce. The Federal government argued:
[A]s long as Congress has a legitimate interest in strengthening the market for a particular agricultural commodity, Congress is entitled . . . to enact this sort of program and impose it on an industry.
Sound familiar? It should, if you’ve listened to any lefties arguing that Congress’ legitimate role in regulating the health insurance industry entitles it to impose the Individual Mandate on all American citizens. However, Justice Kennedy wasn’t impressed. In that case he said they Federal Government was trampling companies First Amendment rights, including the right not to say anything. Which fits right in with the concerns stated by Justice Kennedy during Oral Argument, that the Individual Mandate was an Federal Government assault upon individual liberty.
Hopefully he’ll decide that individuals are entitled to the same liberty as corporations, when it comes to the right not to do things.
Jonathan Adler wrote a post at Volokh asking why “legal elites” made such bad predictions about how the ObamaCare argument would go. So far, I haven’t seen anyone ask if one of the results of that blindness was the Obama Administration rules forcing Catholic organizations to purchase health insurance that provides contraceptives, and even abortificants (Plan B). “Swing Justice” Kennedy is a Catholic who is very concerned about “liberty”. If the Obama Administration was aware a month ago that they desperately needed his vote to let ObamaCare live, and that it was going to be tight, at best, for their side, would they have gone ahead and announced that they were going to use ObamaCare to force every Catholic School, food kitchen, hospital, etc. to violate its principles? Would they have announced that the final regulations would go into effect in May, so that the Supreme Court is getting appeals for protection from ObamaCare while the Supreme Court is finalizing the decisions and votes on whether to throw out ObamaCare?
What will the effect be on the 5 Catholic “conservative” Justices? Will they look at the Obama Administration’s assault upon religious liberty using ObamaCare, and say “let’s just kill the whole thing, so we don’t have to deal with this”? If they strike down the individual mandate, and strike down community rating and guaranteed issue, and strike down the Federal Government’s power to define “minimum insurance standards”, what’s left? Also, if they strike down the whole law, then they don’t have to try to answer if the Medicare expansion is “coercive”. Perhaps they want to answer that question. But if they don’t, “kill it all, let the voters settle it” seems like a smart way to go.
As Democrats start to come to grips with the idea that the Individual Mandate might be ruled unconstitutional, the next bit of spin comes to the fore “if the Supreme Court strikes down ObamaCare, this will just motivate liberals to get out there and vote for Obama.”
When the Democrats were carrying out their unprecedented filibusters of President Bush’s judicial nominees, there were 55 Republican Senators, and most Republican supporting voters couldn’t figure out why the Republicans were letting the Democrat minority run the show like that. Then the Republican Senate leadership threatened to “go nuclear”, and all was right with the world. Then John McCain organized the Gang of 14 to block the nuclear option, and reward the Democrats for having changed the rules of the game. This ripped the heart out of many Republican supporters. He we’d gotten a 55 seat majority, and those idiots in Washington still screwed it up!
Then came the 2006 Elections, and the Republicans no longer had their useless majority.
If the Supreme Court tosses out ObamaCare (and I think they should, because it’s unconstitutional), I think the Democrats will face a similar response. They had the White House, 240+ Democrats in the House, and 60 Democrats in the Senate. What’d they do with it? They passed a “stimulus” law that didn’t help the economy, and an unconstitutional and unpopular “health care reform” law.
Tell me again why these guys deserve power?
It’s the mushy middle who decide elections. And when they give you power, they expect you to accomplish something with it. If you don’t, they’re going to give it to the other side.
With ObamaCare gone, record high gas prices, and a crappy economy, what did Obama and the Democrats do with the power the people gave them in 2008? Unless they can answer that, all the scary stories about the Republicans, and all the promises of future benefits, aren’t going to be enough.
Over at Volokh, several commenters have been whining that it’s a violation of precedent for the Supreme Court to reject a government power (such as the individual mandate) just because there’s no “limiting principle” that would accept that power, but deny the Federal Government other powers. Glenn Reynolds article in the Examiner today effectively rebuts that, with a quote from Lopez (the decision that overturned the “no guns within 1000 feet of a school law):
It was not acceptable, the majority opinion said, to “pile inference upon inference” in order to extend federal power so far beyond its intended limits. “To do so would require us to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local. This we are unwilling to do.”
Verrilli didn’t look like an ass because the Court changed the rules on him,Verrilli looked like an ass because the people who wrote ObamaCare decided they could ignore Lopez, and as such they left Verrilli with an indefensible law to try to defend. Also left looking like the asses they are are all the left-wing “legal commentators” (Linda Greenhouse, etc.) who insisted that the Individual mandate was a Constitutional “slam dunk”, apparently having wiped from their minds that Kennedy voted in the majority on Lopez and in Bond v. United States Kennedy wrote last year:
[Limiting federal power] protects the liberty of all persons within a state by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.
If that doesn’t sound like “just because States can do it, doesn’t mean the Federal Government can”, then you’re not paying attention. That, BTW, was a 9-0 decision. Which is what the ruling striking down the Individual Mandate would be, if the four “liberals” on the Court were honest Justices, rather than left-wing hacks.
Bundesbank has announced that it’s killing the Euro. No, they didn’t put it that way, they said the following:
The central bank of Germany will no longer accept bank bonds backed by Ireland, Greece and Portugal as collateral, becoming the first euro-zone central bank to exercise a new privilege to protect its balance sheet from the region’s debt crisis. The decision signals the determination of the Deutsche Bundesbank to limit risks from the nonstandard measures the European Central Bank has taken to combat market stress during the crisis.
the reason why Germany has been trying to keep Greece et. al from crashing is because German banks hold a lot of Greek, Spanish, etc. bonds. This move by the Bundesbank makes no sense unless it’s only the start (or maybe even the middle). Expect to see German banks doing their best to get rid of their exposure to “Club Med” bonds, because if they’re not good enough for the Bundesbank, clearly they’re not good enough for German banks that aren’t backed by the taxpayers.
Possibility 1: German banks significantly reduce their exposure to Club Med debt: At which point Germany tells the Greeks to stuff it, and either the Greeks get booted out of the Euro, or German leaves (sorry, but the idea that the Greeks will actually get their house in order is too silly to consider).
Possibility 2: This causes a run on Club Med debt, as everyone else decides that if it’s not good enough for the Bundesbank, it’s not good enough for them. At which point the cost of new debt goes so high for the Greeks and other Club Med countries that they can no longer roll over their existing debt, let alone continue running their normal deficits. At which point, the Club med countries get kicked out of the Euro, or else Germany goes back on the Deutsche Mark.
In any event, the German political class has accepted that their voters won’t let them subsidize the Euro any more. Now that they’ve accepted that, the Euro in its present form is toast.
I wonder how much this has to do with Sarkozy’s upcoming defeat in the French elections? My guess is “a lot”. I think the German political class thought that with Sarkozy, they could get a deal that the German voters would accept. With the Socialist, they know this isn’t the case, so now it’s time to mend fences with the German voters (who’ve been nothing but pissed about the bailouts), and let the rest of Europe go hang.
WWII is now over. The Germans no longer feel guilty enough about it to pay to keep the Euro going.
Wait for commentary by William Russel Mead in 3 … 2 … 1 …
The Washington Post has an editorial on the Supreme Court hearings on ObamaCare that gets a passing grade on Civics, but a flunking grade on understanding of insurance. They wrote
There was, in some of the conservative argumentation over three days, a distressing undertone of me-firstism. Congress wanted to “capture” young people, attorney Paul D. Clement argued on behalf of the states objecting to the health-care plan, because they are “the golden geese that pay for the entire lowering of the premium.” Well, yes, that is how insurance works
No, it’s not. If you buy Term Life insurance, you pay a different, and much lower, rate if you’re 25, than you do if you’re 45, or 65. And yo pay a much higher rate if you’re a smoker If you buy auto insurance, you pay a much higher rate if you’re 18 and have no tickets or accidents, than if you’re 25, 35, or 45 also with no accidents or tickets. Insurance is about pooling risk, it’s not about transferring costs from the politically favored to the politically unfavored. For that you have government. As Mr. Carvin pointed out during arguments of the individual mandate, “since the founding, whenever Congress has imposed that public responsibility on private actors, it has subsidized it from the Federal Treasury. It has not conscripted a subset of the citizenry and made them subsidize the actors who are being hurt, which is what they’re doing here.”
The Democrats writing ObamaCare didn’t do that, because (as the Post editorial notes) they wanted to hide the cost of their actions from the American people. That’s not “insurance”, that’s fraud, dishonesty, and normal operating procedure for the Democrat Party.
Then there’s their defense of “health care is special:
Mr. Verrilli, in fact, had a persuasive response: The health-care market is different from all others because virtually everyone, like it or not, will become entangled in it. You can choose not to buy a car; you can’t necessarily choose not to be hit by one. If you end up in the emergency room, you will be cared for, as federal law demands. The government, already deeply involved in regulating the health-care market, has a legitimate interest in encouraging you to prepare for such an eventuality.
(Bold face added). Apparently the Washington Post editors are unaware that everyone has to buy food, and so is entangled in the “food market”. So I guess that Congress can force us to eat broccoli, or at least force us to buy it. They’re also unaware that everyone has to get around, and so is involved in the “transportation market” (sorry, but if podiatry, urology, and ophthalmology are all part of the same “market”, then so are cars, buses, and shoes). Further, they seem to have decided that since the Federal Government has imposed market distorting regulations on the health care market, this expands the Constitutional limits on the power of the Federal Government in the health care market. This is a flawed argument.
Ending on a high note, they did get one thing right:
But we also think there’s a kind of cynicism, or at least intellectual laziness, in asserting that this is an easy or obvious call — that no justice could possibly strike down the mandate out of honest, reasoned conviction. Solicitor General Donald B. Verrilli Jr. had his hands fulldefending the mandate, not because he’s a bad lawyer, but because it’s not an easy question.
If the federal government can force young adults to buy health insurance that they do not want, then what can’t the government do? That was the challenge from the mandate’s opponents. Liberal justices tried to come up with other cases where the government forces citizens to take affirmative action — to have pollution controls installed on their cars, to drive faster than 45 mph on the freeway. But no one has to buy a car, and you can choose to stay off the interstate.
Well, mostly right. Contra Justice Breyer, while Congress has used the spending power to force states to establish a 55 MPH speed limit, it did not pass the limit itself, did not enforce it, and has never ordered a minimum speed limit (which is what Breyer needed, since he was claiming the Federal Government had the power to order people to do things, rather than to refrain from doing something).
It’s been a joy reading the transcripts of the Individual Mandate debate, because everything I wanted the Individual Mandate opponents to say, they said.
JUSTICE GINSBURG: Well then, what about the determination that they can’t possibly work if people don’t have to buy insurance until they are — their health status is such that the insurance company just dealt with them on its — as it will? They’d say, I won’t insure you because you’re — you’re already sick.
MR. CARVIN: It depends what you mean by work.” It’ll work just fine in ensuring that no sick people are discriminated against. What — what — but when you do that — Congress -
JUSTICE GINSBURG: But the sick people, why would they insure early if they had to be protected if they get insurance late?
MR. CARVIN: Yes. Well, that’s — see, this is the government’s very illogical argument. They seem to be saying, look, we couldn’t just force people to buy insurance to lower health insurance premiums. That would be no good. But we can do it because we’ve created the problem. We, Congress, have driven up the health insurance premiums, and since we’ve created that problem, this somehow gives us authority that we wouldn’t otherwise have. That can’t possibly be right.
MR. CARVIN: There is no moral dilemma between having people have insurance and denying them emergency service. Congress has made a perfectly legitimate value judgment that they want to make sure that people get emergency care. Since the founding, whenever Congress has imposed that public responsibility on private actors, it has subsidized it from the Federal Treasury. It has not conscripted a subset of the citizenry and made them subsidize the actors who are being hurt, which is what they’re doing here.
MR. CARVIN: It is clear that the failure to buy health insurance doesn’t affect anyone. Defaulting on your payments to your health care provider does. Congress chose, for whatever reason, not to regulate the harmful activity of defaulting on your health care provider. They used the 20 percent or whoever among the uninsured as a leverage to regulate the 100 percent of the uninsured.
Justice Breyer makes an ass out o himself, and Carvin politely helps him figure that out:
JUSTICE BREYER: Fine. Then if that’s so, is — let me just change my example under pressure - and say that in fact it turns out that percent of all automobiles driving interstate without certain equipment put up pollution, which travels interstate — not percent, maybe only percent. Does the EPA have the power then to say you’ve got to have an antipollution device? It’s statistical.
MR. CARVIN: What they can’t do — yes, if you have a car, they can require you to have an anti-pollution -
JUSTICE BREYER: Then you’re not going on statistics; you’re going on something else, which is what I’d like to know what it is.
MR. CARVIN: It’s this. They can’t require you to buy a car with an anti-pollution device. Once you’ve entered the market and made a decision, they can regulate the terms and conditions of the car that you do, and they can do it for all sorts of reasons. What they can’t do it compel you to enter the market.
JUSTICE BREYER: Now we — now you’ve changed the ground of argument, which I accept as — as totally legitimate. And then the question is when you are born and you don’t have insurance and you will in fact get sick and you will in fact impose costs, have you perhaps involuntarily — perhaps simply because you are a human being — entered this particular market, which is a market for health care?
MR. CARVIN: If being born is entering the market, then I can’t think of a more plenary power Congress can have, because that literally means they can regulate every human activity from cradle to grave. I thought that’s what distinguished the plenary police power from the very limited commerce power. I don’t disagree that giving the Congress plenary power to mandate property transfers from A to B would be a very efficient way of helping B and of accomplishing Congress’s objectives. But the framers -
JUSTICE BREYER: I see the point. You can go back to Justice Kagan.
It won’t do any good with Justice Breyer, because he couldn’t care less what’s actually in the Constitution. But it was still a well made point.
Score one for Justice Alito (and Zero for Justice Breyer):
JUSTICE ALITO: Mr. Carvin, isn’t there this difference between Justice Breyer’s hypothetical and the law that we have before us here? In his hypothetical the harm to other people from the communicable disease is the result of the disease. It is not the result of something that the government has done, whereas here the reason why there is cost- shifting is because the government has mandated that. It has required hospitals to provide emergency treatment and, instead of paying for that through a tax which would be born by everybody, it has required — it has set up a system in which the cost is surreptitiously shifted to people who have health insurance and who pay their bills when they go to the hospital.
MR. CLEMENT: Justice Alito, that is exactly the government’s argument. It’s an extraordinarily illogical argument.
Justice Sotomayor throws a spitball, and Clement knocks it out of the park, anyway:
JUSTICE SOTOMAYOR: Could you tell me, do you think the States could pass this mandate?
MR. CLEMENT: I represent States. I do think the States could pass this mandate, but I -
JUSTICE SOTOMAYOR: Is there any other area of commerce, business, where we have held that there isn’t concurrent power between the State and the Federal Government to protect the welfare of commerce?
MR. CLEMENT: Well, Justice Sotomayor, I have to resist your premise, because I didn’t answer yes, the States can do it because it would be a valid regulation of intrastate commerce. I said yes, the States can do it because they have a police power, and that is the fundamental difference between the States on the one hand and the limited, enumerated Federal Government on the other.
Poor Sotomayor, she just can’t wrap her mind around the fact that the Federal Government’s powers are supposed to be limited.
MR. CLEMENT: Well, Justice Kennedy, I don’t think that’s right, certainly in any way that distinguishes this from any other context. When I’m sitting in my house deciding I’m not going to buy a car, I am causing the labor market in Detroit to go south. I am causing maybe somebody to lose their job, and for everybody to have to pay for it under welfare. So, the cost shifting that the government tries to uniquely associate with this market — it’s everywhere.
And even more to the point, the rationale that they think ultimately supports this legislation, that, look, it’s an economic decision; once you make the economic decision, we aggregate the decision; there’s your substantial effect on commerce. That argument works here. It works in every single industry.
MR. CLEMENT: Well, Justice Breyer, are other markets that affect every one - transportation, food, burial services — though like to talk about that either. There also are situations where there are many economic effects from somebody’s failure to purchase a product.
And if I could — if I could talk about the difference between the health insurance market and the health care market, I mean, ultimately I don’t want you to leave here with the impression that anything turns on that. Because if the government decided tomorrow that they’ve come up with a great — somebody — some private company has come up with a great new wonder drug that would be great for everybody to take, it would have huge health benefits for everybody; and by the way, also, if everybody had to buy it, it would facilitate economies of scale, and the production would be great, and the price would be cheaper — and force everybody in the health care market, the actual health care market, to buy the wonder drug, I’d be up here making the same argument.
MR. CLEMENT: Justice Kagan, again, with all due respect, I don’t think that’s a limiting principle. My unwillingness to buy an electric car is forcing up the price of an electric car. If only more people demanded an electric car, there would be economies of scale, and the price would go down.
MR. CLEMENT: Justice Kagan, first of all, I do think there — this is not the only place where there’s uncompensated care. If some — if I don’t buy a car and somebody goes on welfare, I’m going to end up paying for that as well.
But let me also say that there’s a real disconnect then between that focus on what makes this different and the statute that Congresses passed. If all we were concerned about is the cost sharing that took place because of uncompensated care in emergency rooms, presumably we’d have before us a statute that only addressed emergency care and catastrophic insurance coverage. But it covers everything, soup to nuts, and all sorts of other things.
And that gets at the idea that there’s two kinds of cost shifting that are going on here. One is the concern about emergency care and that somehow somebody who gets sick is going to shift costs back to other policy areas — holders. But there’s a much bigger cost shifting going on here, and that’s the cost shifting that goes on when you force healthy people into an insurance market precisely because they’re healthy, precisely because they’re not likely to go to the emergency room, precisely because they’re not likely to use the insurance they’re forced to buy in the health care insurance. That creates a huge windfall. It lowers the price of premiums.
And, again, this isn’t just some lawyer up here telling you that’s what it does and trying to second-guess the congressional economic decisions. This is Congress’s findings, Findings (I) on page 43a of the appendix to the Government’s brief.
And then the first point which was — I take it to be the Solicitor General’s point, is, with all due respect, simply a description of the insurance market. It’s not a limiting principle, because the justification for why this is a valid regulation of commerce is in no way limited to this market. It simply says these are economic decisions; they have effect on other people; my failure to purchase in this market has a direct effect on others who are already in the market. That’s true of virtually every other market under the sun.
The second thing is I would urge you to read the license tax case which the Solicitor General says is his best case for why you ignore the fact that a tax is denominated into something other. Because that’s a case where the argument was that because the Federal Government had passed a license, not a tax, that somehow that allowed people to take actions that would have been unlawful under State law, that this was some special Federal license to do something that was forbidden by State law. This Court looked beyond the label in order to preserve federalism there. What the Solicitor General and the government ask you to do here is exactly the opposite, which is to look past labels in order to up-end our basic federalist system.
Justice Breyer tried to pull a fast one, and gets crushed:
JUSTICE BREYER: I’m focusing just on the Commerce Clause; not on the Due Process Clause, the Commerce Clause. And I look back into history, and I think if we look back into history, we see sometimes Congress can create commerce out of nothing. That’s the national bank, which was created out of nothing to create other commerce out of nothing….
So what is argued here is there is a large group of — what about a person that we discover that there are — a disease is sweeping the United States, and 40 million people are susceptible, of whom 10 million will die; can’t the Federal Government say all 40 million get inoculation?
Me: Perhaps yes, but they couldn’t both force them to get inoculated, and force them to pay for it. But Paul Clement goes in for the kill
MR. CLEMENT: Well, Justice Breyer, let me start at the beginning of your question with McCulloch. McCulloch was not a commerce power case.
JUSTICE BREYER: It was both?
MR. CLEMENT: No, the bank was not justified and the corporation was not justified as an exercise of commerce power. So that is not a case that says that it’s okay to conjure up the bank as an exercise of the commerce power.
And what, of course, the Court didn’t say, and I think the Court would have had a very different reaction to, is, you know, we are not just going to have the bank, because that wouldn’t be necessary and proper, we are going to force the citizenry to put all of their money in the bank, because, if we do that, then we know the Bank of the United States will be secure. I think the framers would have identified the difference between those two scenarios, and I don’t think that the great Chief Justice would have said that forcing people to put their deposits in the Bank of the United States was necessary and proper.
Now, if you look through all the cases you mentioned, I do not think you will find a case like this. And I think it’s telling that you won’t. I mean, the regulation of the wheat market in Wickard against Filburn, all this effort to address the supply side and what producers could do, what Congress was trying to do was support the price of wheat. It would have been much more efficient to just make everybody in America buy 10 loaves of bread. That would have had a much more direct effect on the price of wheat in the prevailing market. But we didn’t do that. We didn’t say when we had problems in the automobile industry that we are not just going to give you incentives, not just cash for clunkers, we are going to actually have everybody over 100,000 dollars has to buy a new car -
MR. CLEMENT: Well, with respect, Mr. Chief Justice, I suppose the first thing you have to say is what market are we talking about? Because the government — this statute undeniably operates in the health insurance market. And the government can’t say that everybody is in that market. The whole problem is that everybody is not in that market, and they want to make everybody get into that market.
MR. CLEMENT: Well, Justice Kagan, I’m not sure that’s right. I think what health insurance does and what all insurance does is it allows you to diversify risk. And so it’s not just a matter of I’m paying now instead of paying later. That’s credit. Insurance is different than credit. Insurance guarantees you an upfront, locked-in payment, and you won’t have to pay any more than that even if you incur much great expenses.
Chief Justice Roberts and Justice Alito focuse on the disconnect between the excuse for the IM, and the reality:
CHIEF JUSTICE ROBERTS: The key in Lochner is that we were talking about regulation of the States, right, and the States are not limited to enumerated powers. The Federal Government is. And it seems to me it’s an entirely different question when you ask yourself whether or not there are going to be limits on the Federal power, as opposed to limits on the States, which was the issue in Lochner.
CHIEF JUSTICE ROBERTS: Well, but it’s critical how you define the market. If I understand the law, the policies that you’re requiring people to purchase involve — must contain provision for maternity and newborn care, pediatric services, and substance use treatment. It seems to me that you cannot say that everybody is going to need substance use treatment or pediatric services, and yet that is part of what you require them to purchase.
GENERAL VERRILLI: Well, it’s part of what the statute requires the insurers to offer. And I think the reason is because it’s trying to define minimum essential coverage because the problem
CHIEF JUSTICE ROBERTS: But your theory is that there is a market in which everyone participates because everybody might need a certain range of health care services, and yet you’re requiring people who are never going to need pediatric or maternity services to participate in that market.
JUSTICE ALITO: Are you denying this? If you took the group of people who are subject to the mandate and you calculated the amount of health care services this whole group would consume and figured out the cost of an insurance policy to cover the services that group would consume, the cost of that policy would be much, much less than the kind of policy that these people are now going to be required to purchase under the Affordable Care Act?
GENERAL VERRILLI: Well, while they are young and healthy, that would be true. But they are not going to be young and healthy forever. They are going to be on the other side of that actuarial equation at some point. And of course, you don’t know which among that group is the person who’s going to be hit by the bus or get the definitive diagnosis. And that
JUSTICE ALITO: The point is — no, you take into account that some people in that group are going to be hit by a bus, some people in that group are going to unexpectedly contract or be diagnosed with a disease that — that is very expensive to treat. But if you take their costs and you calculate that, that’s a lot less than the amount that they are going to be required to pay. So that you can’t just justify this on the basis of their trying to shift their costs off to other people, can you?
I will admit, it is kind of fun seeing the young people who overwhelmingly voted for the Democrats getting screwed over by the Democrats in return. Yes, later on they may need more care. OTOH, later on they will hopefully be making a lot more than they’re making right now.
Why do you define the market that broadly? Health care. It may well be that everybody needs health care sooner or later, but not everybody needs a heart transplant, not everybody needs a liver transplant.
Could you define the market — everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.
Mr. Verrilli, you could say that about buying a car. If people don’t buy cars, the price that those who do buy cars pay will have to be higher. So, you could say in order to bring the price down, you’re hurting these other people by not buying a car.
One of my favorites. Sorry, but the fact that Congress has passed a law demanding that people do something does not change what is now Constitutionally permitted.
GENERAL VERRILLI: No. It’s because you’re going — in the health care market, you’re going into the market without the ability to pay for what you get, getting the health care service anyway as a result of the social norms that allow — that — to which we’ve obligated ourselves so that people get health care.
JUSTICE SCALIA: Well, don’t obligate yourself to that.
GENERAL VERRILLI: Well, I can’t imagine that that — that the Commerce Clause would — would forbid Congress from taking into account this deeply embedded social norm.
JUSTICE SCALIA: You could do it.
Catching Verrilli unclear on the concept
GENERAL VERRILLI: [I]n the sense that it’s novel, this provision is novel in the same way, or unprecedented in the same way, that the Sherman Act was unprecedented when the Court upheld it in the Northern Securities case; …. And
JUSTICE SCALIA: Oh, no, it’s not. They all involved commerce. There was no doubt that what was being regulated was commerce. And here you’re regulating somebody who isn’t covered.
By the way, I don’t agree with you that the relevant market here is health care. You’re not regulating health care. You’re regulating insurance. It’s the insurance market that you’re addressing and you’re saying that some people who are not in it must be in it, and that’s — that’s different from regulating in any manner commerce that already exists out there.
And then a truly crushing blow:
JUSTICE SCALIA: Wait. That’s — it’s both “Necessary and Proper.” What you just said addresses what’s necessary. Yes, has to be reasonably adapted. Necessary does not mean essential, just reasonably adapted. But in addition to being necessary, it has to be proper. And we’ve held in two cases that something that was reasonably adapted was not proper, because it violated the sovereignty of the States, which was implicit in the constitutional structure. The argument here is that this also is — may be necessary, but it’s not proper, because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it’s supposed to be a government of limited powers. And that’s what all this questioning has been about. What — what is left? If the government can do this, what — what else can it not do?
A question Verrilli never answers, because he has no good answer.
JUSTICE SCALIA: An equally evident constitutional principle is the principle that the Federal Government is a government of enumerated powers and that the vast majority of powers remain in the States and do not belong to the Federal Government. Do you acknowledge that that’s a principle?
GENERAL VERRILLI: Of course we do, Your Honor.
JUSTICE SCALIA: Okay. That’s what we are talking about here.
GENERAL VERRILLI [Babels]
JUSTICE SCALIA: I don’t understand your point
GENERAL VERRILLI: This is in -
JUSTICE SCALIA: Whatever the States have chosen not to do, the Federal Government can do?
GENERAL VERRILLI: No, not at all.
JUSTICE SCALIA: I mean, the Tenth Amendment says the powers not given to the Federal Government are reserved, not just to the States, but to the States and the people. And the argument here is that the people were left to decide whether they want to buy insurance or not.
Taking Verrilli to task when he tries to use Community Rating and Guaranteed Issue as excuses for why the Individual Mandate is Constitutional:
JUSTICE SCALIA: You could solve that problem by simply not requiring the insurance company to sell it to somebody who has a condition that is going to require medical treatment, or at least not — not require them to sell it to him at a rate that he sells it to healthy people. But you don’t want to do that.
GENERAL VERRILLI: But that seems to me to say, Justice Scalia, that Congress — that’s the problem here. And that seems to me -
JUSTICE SCALIA: It’s a self-created problem.
JUSTICE SOTOMAYOR: General, I see or have seen three strands of arguments in your briefs, and one of them is echoed today.
The first strand that I’ve seen is that Congress can pass any necessary laws to effect those powers within its rights, i.e., because it made a decision that to effect — to effect mandatory issuance of insurance, that it could also obligate the mandatory purchase of it.
The second strand I see is self-insurance affects the market; and so, the government can regulate those who self-insure.
And the third argument — and I see all of them as different — is that what the government is doing — and I think it’s the argument you’re making today — that what the — what the government is saying is if you pay for — if you use health services, you have to pay with insurance, because only insurance will guarantee that whatever need for health care that you have will be covered, because virtually no one, perhaps with the exception of 1 percent of the population, can afford the massive cost if the unexpected happens.
I think accurately state, and it shows what’s so wrong with ObamaCare
1: What Justice Sotomayor, “General” Verrilli, and the Democrats in Congress and the White House have all missed is that the phrase is “Necessary and Proper“, not just “Necessary”. While the Individual Mandate is Necessary for the Democrats scheme to work, it is not Proper, and thus it fails.
2: What government ordered health insurance will “guarantee” is that your politically approved “needs” will be met. But that if the government review board decides your “need” isn’t “needy” enough, you’re toast. Because no one, not even the US Government, can pay to cover all of everyone’s health care “needs”. ObamaCare changes who gets to decide, but it doesn’t change that a decision has to be made.