Supreme Court Bound! Health Care Reform Law Unconstitutional

[goldcatt]

Not cut and dried to me. The very day that Medicare went into effect, there was abuse of the system by medical personnel. And once they figured out there were no consequences, widespread abuse of the system by patients also became a factor.

The government had deep deep pockets and wouldn't question 'legitimate' healthcare services. And from that day forward, costs began increasing proportionately to the 'free' government monies paid for healthcare costs. Ditto for Medicaid. And the government caps on Medicare and Medicaid payments shifted the costs to the rest of us so that private insurance premiums began escalating at a rapid rate. And the more mandates the government piled on--nobody could be turned away for ANY reason for any medical treatment and those who couldn't pay would be paid for by the hospital or the state--private insurance became even more expensive. Little or no accountability was required by anybody and individual responsibility was out the window altogether.

Such is the track record of essentially all government entitlements.

To think that adding 40+ million more people to the system won't dramatically further increase costs is absurd. To think that government caps on what doctors and hospitals can charge while addressing none of their costs won't drive many out of the business altogether is also absurd.

There is much the federal and state government could do to make the system more efficient:
1. Cap punative awards in all but the most egregious cases of negligence so that there would be less necessity for 'defensive medicine' and malpractice insurance would be more affordable.
2. Form assigned risk pools for the difficult to insure.
3. Establish and enforce anti trust laws so that insurance companies won't enjoy near monopolies in any place and will be forced to compete.
4. Allow doctors and other medical providers to charge everybody for their services and collect what they can get. Eliminate free healthcare as an entitlement for anybody.
5. Expect parents to provide food, shelter, clothing, and healthcare for their kids. Those that cannot or will not will be at risk of losing their kids rather than being compensated more for having more kids. (Exceptions can be made for extenuating circumstances, but for the most part put the responsibility back on the individual where it has always belonged.)
6. Require all insurance to be portable. Employees covered under an employers plan have the option to take their policy with them and pay for it themselves when they change jobs or are fired or laid off.

There are many such ways to enable and empower the free market to bring down costs and insure more people without the government taking over and micromanaging the whole thing.

I actually agree with some of that, but when you're talking about the constitutionality of a law none of it matters a whit. It doesn't matter if a law is good or makes sense, it doesn't matter if the policy actually works as intended, it only matters that it is allowed under current constitutional guidelines OR, more difficult to win, that it highlights a serious flaw in the current constitutional guidelines that must be changed.

IOW the courts have no authority to strike down a law for being a bad law, only for being an unauthorized one. The fact that there are many, many other paradigms Congress could have adopted that could or would have gotten better results is irrelevant to the courts. They can only work with what's before them applying the laws as they exist to the arguments that are made.

I realize we're looking at this from very different places and points of view, but the suggestions you're making simply cannot be addressed anywhere but Congress and don't enter into the discussion of whether PPACA is or is not constitutional.

Unless some judge comes at it as constitutional because it 'promotes the general welfare' or addresses the 'common good' or some such as that and uses various cherry picked examples as precedence for declaring this law constitutional.

I can see how that might come under consideration in some courts--is it necessary because there is no alternative? Judicial activism is not entirely a new concept these days. And I can't prove it, but I think public opinion has played a part in SCOTUS decisions too.

But I do appreciate your focus on the constitutionality issue as opposed to the Congressional approach and of course you are right. I believe the mandate to be insured is unconstitutional and must not be upheld. If it is allowed to stand, I see that as a precedent that could be used to strip us of all choices, options, and self determination and would pretty well render moot the intent of the Constitution to limit the powers of the federal government.

I'd like to speak to Congress about passing such a piece of pork and calling it health care legislation, but unfortunately they don't exactly answer their phone for me either. So at this point until and unless a bill comes up repealing or amending PPACA, we're stuck with the only action being court action. So that's where I try to focus, since I like to be where the action is.

The way it was framed at the District level, in the statement of jurisdiction within PPACA itself and the way it will play out is as a commerce clause issue, with a potential side question of whether the mandate itself falls within the (broad but not entirely unlimited) scope of the necessary and proper clause.

Which is where I come down as an "I don't know" on the eventual way this will pan out as far as the commerce clause issue goes. There's a pretty good argument either way in other fields of law where economic activity v. inactivity is at issue ranging from FICA taxes on severance packages to issues like the auto insurance mandates at the State level. But as far as Federal law specifically exacting a penalty for choosing not to participate in economic activity, no, there is no case or other law directly addressing it.

IMO, if it's found to be constitutional under the commerce clause the mandate will stand under the necessary and proper clause because at that point it relates closely to applicable precedent in Gonzales and Wickard. I had a side conversation elsewhere with a poster here talking about the possibility of a 10th Amendment based argument using a case called Printz, where a policy was found to be outside the scope of the necessary and proper clause because it was an issue that had previously specifically been ruled to belong solely to the States. But there is no such ruling on health insurance, if there were there could and would be no VA, medicaid or medicare.

I'm not sure the consequences are as dire as all that if PPACA stands though. (Beyond the law sucking eggs, that is) The argument being made here is fairly narrow, and would not affect government's power to force people to purchase usual goods ad services such as cars or clothing. And at the State level there are already insurance mandates as has been pointed out, those being more onerous because they are usually enforceable by criminal penalties rather a tax or surcharge. People sometimes forget that at minimum 80% of the laws we all live under are either State or local in nature, not Federal. I'd be just as concerned about placing broad new powers in the hands of the States as I would be that of the Feds, honestly.

Yep, there's been plenty of judicial activism - on both sides of the aisle, I might add. But this is, or should be, a fairly straightforward commerce question. It'll be interesting to see how it develops as the case progresses.

 

[The Rabbi]

No, I think it really is.

The auto insurance mandate is because every one of us puts other people at risk every time we get out on the road. So, it makes sense that we show that we are able to make restitution should we cause injury or damage to others. It is a reasonable cost for the privilege of using the public roads. And if we choose not to drive on the public roads, we do not need and are not required to buy the insurance.

Should the government mandate people have Homeowners or flood or earthquake Insurance? It doesn't because the homeowner is allowed to assume the risk of fire, destructive winds, hail, flood, earthquake, theft, or somebody tripping and falling on the property. But nobody is REQUIRED to come onto our property; therefore we do not automatically put anybody else at risk by maintaining a property UNLESS the government unconstitutionally and foolishly requires others to pay for our damages that we choose not to insure.

If I get sick I do not automatically put anybody else at risk UNLESS the government unconstitutionally and foolishly requires others to pay for me to see doctor or go to the emergency room or whatever.

Whenver or whatever the federal government becomes involved in re ANY kind of entitlement, it has ALWAYS resulted in higher costs than were originally advertised and resulted in long term unsustainability. Auto insurance, however, has remained affordable and available throughout the land. The federal government has not been involved in that.

The federal government should not be involved in healthcare either.

Actually, you do put other people at risk when you get sick, both physically in the case of infectious disease and financially if you are uninsured and unable to pay for your own care. Those costs are invariably passed on to the rest of us either in the form of government paid insurance or in the form of higher costs for our own healthcare, or most likely both.

That's just fact.

Now whether the Federal government has the right to regulate economic inactivity under the commerce Clause is a different question, and an interesting one. But the individual States already do it, and in a different situation where there is another form of compensation available to victims in the form of civil tort liability. In the case of shouldering another's unpaid health care costs or in almost every case of succumbing to the public health risk of untreated communicable disease there is no secondary remedy. Which, if I'm to play Devil's Advocate here, makes a mandate for health insurance more necessary rather than less.

Really?

The last time I got seriously sick I simply stayed home, and was fine in a few days. No doctor visit, not danger to anyone else, and no cost to anyone but myself. In fact, no real cost to myself because lost wages are not an expense.

Exactly how did my insurance status impact anyone?

I take a continuing treatment and pay for it out of my own pocket, despite having insurance. How does that effect anyone else?
I wish more people would do that.

 

[goldcatt]

Actually, you do put other people at risk when you get sick, both physically in the case of infectious disease and financially if you are uninsured and unable to pay for your own care. Those costs are invariably passed on to the rest of us either in the form of government paid insurance or in the form of higher costs for our own healthcare, or most likely both.

That's just fact.

Now whether the Federal government has the right to regulate economic inactivity under the commerce Clause is a different question, and an interesting one. But the individual States already do it, and in a different situation where there is another form of compensation available to victims in the form of civil tort liability. In the case of shouldering another's unpaid health care costs or in almost every case of succumbing to the public health risk of untreated communicable disease there is no secondary remedy. Which, if I'm to play Devil's Advocate here, makes a mandate for health insurance more necessary rather than less.

Really?

The last time I got seriously sick I simply stayed home, and was fine in a few days. No doctor visit, not danger to anyone else, and no cost to anyone but myself. In fact, no real cost to myself because lost wages are not an expense.

Exactly how did my insurance status impact anyone?

I take a continuing treatment and pay for it out of my own pocket, despite having insurance. How does that effect anyone else?
I wish more people would do that.

You wish more people would be idiotic enough to pay for insurance and then pay again to not use it? Or is your treatment not covered by your plan so you pay out of pocket, and you're trying to turn that into a virtue? Or are you ripping off your insurer by not having them pay for treatments and therefore are deliberately withholding information about a condition that would make your premiums skyrocket under the law and hoping they don't find out about it on their own and dump you for fraud?

Either way...wow. You really are a sucker.

 

[The Rabbi]

Really?

The last time I got seriously sick I simply stayed home, and was fine in a few days. No doctor visit, not danger to anyone else, and no cost to anyone but myself. In fact, no real cost to myself because lost wages are not an expense.

Exactly how did my insurance status impact anyone?

I take a continuing treatment and pay for it out of my own pocket, despite having insurance. How does that effect anyone else?
I wish more people would do that.

You wish more people would be idiotic enough to pay for insurance and then pay again to not use it? Or is your treatment not covered by your plan so you pay out of pocket, and you're trying to turn that into a virtue? Or are you ripping off your insurer by not having them pay for treatments and therefore are deliberately withholding information about a condition that would make your premiums skyrocket under the law and hoping they don't find out about it on their own and dump you for fraud?

Either way...wow. You really are a sucker.

Jesus are you stupid and arrogant. Bad combination.
In fact I wont meet the deductible anyway and I negotiated a cash discount with the doctor. Saves everyone time, money and paperwork

 

[NYcarbineer]

Even if they just throw out the mandate it won't change the law that much.

 

[boedicca]

Even if they just throw out the mandate it won't change the law that much.

Other than the fact that the entire mess was financially justified by forcing everyone to participate.

Oh, and now the penalty fee which wasn't a tax is a tax.

When they have to LIE to get the bill passed, that's a big clue that it shouldn't have been passed in the first place.

 

[NYcarbineer]

Even if they just throw out the mandate it won't change the law that much.

Other than the fact that the entire mess was financially justified by forcing everyone to participate.

Oh, and now the penalty fee which wasn't a tax is a tax.

When they have to LIE to get the bill passed, that's a big clue that it shouldn't have been passed in the first place.

How many people actually don't have and don't want health insurance?

 

[RDD_1210]

Even if they just throw out the mandate it won't change the law that much.

Other than the fact that the entire mess was financially justified by forcing everyone to participate.

Oh, and now the penalty fee which wasn't a tax is a tax.

When they have to LIE to get the bill passed, that's a big clue that it shouldn't have been passed in the first place.

How many people actually don't have and don't want health insurance?

"That's not the point!!! This infringes upon our god given freedoms!!! blah, blah, blah...."

 

[The Rabbi]

Even if they just throw out the mandate it won't change the law that much.

Except there was no severability clause added so if one part is unconstitutional, the whole thing. Or at least I believe that's the case. I might be wrong.
And as pointed out, the mandate was critical to making it at least appear like it might be affordable.

 

[The Rabbi]

Other than the fact that the entire mess was financially justified by forcing everyone to participate.

Oh, and now the penalty fee which wasn't a tax is a tax.

When they have to LIE to get the bill passed, that's a big clue that it shouldn't have been passed in the first place.

How many people actually don't have and don't want health insurance?

"That's not the point!!! This infringes upon our god given freedoms!!! blah, blah, blah...."

Echo chamber much?

There are plenty of people who don't have health insurance. There are plenty of people who don't want it because they have lots of other things to pay for, like student loans.

 

[RDD_1210]

How many people actually don't have and don't want health insurance?

"That's not the point!!! This infringes upon our god given freedoms!!! blah, blah, blah...."

Echo chamber much?

There are plenty of people who don't have health insurance. There are plenty of people who don't want it because they have lots of other things to pay for, like student loans.

LOL, Here we go again.

There is a difference between not having insurance because you can't afford it and being able to afford it but choosing not to purchase it anyway. That's what he was asking.

 

[The Rabbi]

"That's not the point!!! This infringes upon our god given freedoms!!! blah, blah, blah...."

Echo chamber much?

There are plenty of people who don't have health insurance. There are plenty of people who don't want it because they have lots of other things to pay for, like student loans.

LOL, Here we go again.

There is a difference between not having insurance because you can't afford it and being able to afford it but choosing not to purchase it anyway. That's what he was asking.

I'll add "mind reader" to "mathematician" on your list of accomplishments.

 

[Quantum Windbag]

"That's not the point!!! This infringes upon our god given freedoms!!! blah, blah, blah...."

Echo chamber much?

There are plenty of people who don't have health insurance. There are plenty of people who don't want it because they have lots of other things to pay for, like student loans.

LOL, Here we go again.

There is a difference between not having insurance because you can't afford it and being able to afford it but choosing not to purchase it anyway. That's what he was asking.

And most people between 25 and 40 choose not to buy insurance even if they can afford it because they judge, usually correctly, that they do not need it. Why should they have to get insurance just so whiners like you have to pay less?

 

[Trajan]

Echo chamber much?

There are plenty of people who don't have health insurance. There are plenty of people who don't want it because they have lots of other things to pay for, like student loans.

LOL, Here we go again.

There is a difference between not having insurance because you can't afford it and being able to afford it but choosing not to purchase it anyway. That's what he was asking.

And most people between 25 and 40 choose not to buy insurance even if they can afford it because they judge, usually correctly, that they do not need it. Why should they have to get insurance just so whiners like you have to pay less?

they needed the mandate to make the numbers come out where they wanted them to, forget they lowered it almost immediately anyway, they just submitted the 6 years of taxes oops fees and the like vs. only 4 years of the system acutally running, the Spending, plus the bribes and it was done.

Without the mandate the money they need to buttress the extended care to all those folks who don't have it and/or won't as you say in that age range buy it, the whole magilla is a goner.

They can re- submit more rigged figures to the CBO if they like, but anyone with a lick of common sense knows that the money to pay for someone who has no policy and then shops and buys one with subsidy only when they are then sick etc, makes this all bologna. No mandate no money to help offset this cost.

So, where does it come from?...