Why You Don’t Want Free Health Care: Supreme Court Hears Arguments On Obamacare

Our reading today is from the Constitution, first Act, eighth Section, third Clause:

[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;

This is the so-called Commerce Clause. It is from this verse which is found the new power to compel ordinary citizens to purchase health “insurance” from companies selected by the government. If private citizens do not choose to enter into a contract with (semi) private companies, the federal government will use its powers to punish these citizens.

In Obamacare, the coercion is called the “individual mandate,” as in mandatory under fear and actuality of punishment.

Perhaps you are sympathetic with the view that the government should provide “free” health care to its citizens. You feel so strongly about this—think of the poor!—that you do not care how the government funds this “free” care. So what if people are made to give their money to private companies? The needs of the people for health care outweigh rich folks’ rights to dispense with their money how they see fit. And anyway, Congress surely has the power to raise a tax for this purpose and the individual mandate is nothing but a new tax.

The individual mandate is not a tax, however. Congress certainly could have created a tax to fund health care when it passed Obamacare, but it chose not to, almost certainly because Obamacare would not have passed with a tax as its base. Do not forget that not one single Republican, and not every Democrat, voted for Obamacare. This Act, this most contentious Act, just squeaked by: and only after the Congress promised at the last moment that federal funds would not be used to provide abortions; a promise that was quickly broken.

But never mind that. The mandate is not a tax. Taxes are monies which are taken from citizens and sent to the government. The mandate instead forces citizens to give their money to (semi) private corporations or to pay a penalty—not a tax—to the government. It is true that these beneficiaries will be selected and regulated by the government. But this means the Act thus codifies and makes permanent crony capitalism, a state of affairs which used to be anathema to the left, but embraced warmly in this case.

If you accept that Congress can compel citizens to give money to other citizens lest they pay a penalty, you are setting a precedent with far-reaching consequences. For this allows the federal government to regulate all behavior. Perhaps you are one of the intellectual elite who see that as no bad thing. After all, the truest and brightest will be called to government and there they will decide What Is Best.

Maybe so. But mores and attitudes have a habit of shifting. How long before a new Republican led government is empowered? Don’t forget that we had two terms of George Bush not that long ago. And suppose, Dear Lefty, that Rick Santorum ascends the heights and dons the mantle. Suppose even your worst nightmare comes true and his vice president is—one gasps—Sarah Palin.

What might this pair feel must be born by citizens? They will know they have the power to ask Congress to coerce commerce of any kind. They may say to themselves something like this: Well, abortion is legal, but nobody should be allowed to have one without education of what abortion means, what it can do, and so forth. Since abortion is a right for all, education on this subject must be for all. Every citizen must therefore pay certain organizations—churches, probably, and their affiliates—to provide this education. Or they must pay a penalty.

That okay with you? You may retort that “They wouldn’t do this” or “They will never be elected”, but that sounds more like whistling past the graveyard than sure conviction. Maybe Santorum and Palin won’t grasp power, but it is surely only a matter of time before some right-wing government takes the reins. If the Supreme Court holds with Obamacare, with the individual mandate, then this right-wing government will have the power to coerce whatever commerce it favors. And you will have no choice but to pay.

All history—I use the word all in the sense of all—shows that once a government is awarded a power, they use that power, and with ever-increasing frequency and ever-widening reach. To argue that Congress will stop with a health care mandate is thus irrational, below wishful thinking.

If you truly desire “free” health care for all, then you should petition Congress to institute a tax. Be sure to ask that the tax is large enough, though. Costs under Obamacare are already mushrooming, with no end in sight.

Comments

Why You Don’t Want Free Health Care: Supreme Court Hears Arguments On Obamacare — 18 Comments

  1. Matt, nice try.
    Any lefty would see this expansion as the proverbial manna from heaven, and snicker at your overwroughtedness (tongue in cheek or or not)

    Your examples will have to first pass muster with the right wing before scaring the left wing. Unless one believes in the equality of fervor between left and right to use the government. This does not mean the right has none, but not the same ferocity as the left.

  2. The politicians love to do good at somebody else’s expense. They believe doing good using other peoples money demonstrates their moral superority. If you rob Peter, who is rich and doesn’t deserve the money, and give the money to Paul, who is poor and deserving, that’s good.

    DEEBEE is right. Both right and left use the power of government to compel charity. The politicians will force you to be virtuous.

  3. “Jeremy Benthan however pointed out that the use even of a single name may imply a Petitio Principii. Thus in a Church assembly or synod, where a discussion is taking place as to whether a certain doctrine should be condemned, it would be a Petitio Principii to argue that
    the doctrine is heresy, and therefore it ought to be condemned. To assert that it is heresy is to beg the question, because every one understands by heresy a doctrine which is to be condemned. Similarly in Parliament a bill is often opposed on the ground that it is unconstitutional and therefore ought to be rejected; but as no precise definition can be given of what is or is not constitutional, it nleans little more than that the measure is distasteful to the opponent.” W. Stanley Jevons, Elementary Lessons in Logic, 1888 (emphasis added)

    Jevons rightly identified the fallacy created by the appeal to constitutionality some 120 years ago.

    The above is not an argument over the constitutional aspects of government, especially in light of all the other supposed public good currently distributed by government (CHIPS, social security, medicare/aid, etc.). This is an argument over who dictates my life, Democrats or Republicans.

    As long as conservatives defend governments role in the social safety net, they have no moral voice to attack Obamacare. It’s all question begging hypocrisy.

  4. (hit submit too early above)

    “Jeremy Benthan however pointed out that the use even of a single name may imply a Petitio Principii. Thus in a Church assembly or synod, where a discussion is taking place as to whether a certain doctrine should be condemned, it would be a Petitio Principii to argue that
    the doctrine is heresy, and therefore it ought to be condemned. To assert that it is heresy is to beg the question, because every one understands by heresy a doctrine which is to be condemned. Similarly in Parliament a bill is often opposed on the ground that it is unconstitutional and therefore ought to be rejected; but as no precise definition can be given of what is or is not constitutional, it nleans little more than that the measure is distasteful to the opponent.” W. Stanley Jevons, Elementary Lessons in Logic, 1888 (emphasis added)

    Some 120 years ago, Jevons rightly identified the fallacy created by the appeal to constitutionality.

    The above is not an argument over the constitutional aspects of government, especially in light of all the other supposed public goods currently distributed by government (CHIPS, social security, medicare/aid, etc.). This is an argument over who dictates my life, Democrats or Republicans.

    As long as conservatives defend government’s role in the social safety net, they have no moral voice to attack Obamacare. It’s simply question begging hypocrisy.

  5. I will be listening to the audio of the oral arguments with great interest.

    My opinion is that the mandate is not constitutional.

    However, I also thought that medical marijuana (legal in many states) was not interstate commerce, and Scalia did not agree – so who knows what will happen.

    My worry is that if the mandate is upheld, then it will be attractive to solve every problem by ordering affirmative action, rather than the traditional laws against action.

    For example, if the auto industry is in trouble, order people to buy a car.

    If the housing industry is in trouble, order people to buy a house.

    If people are to fat, order them to buy a Nordic Track (or other piece of exercise equipment).

    Social security in trouble, solution – order people to put 2% into an IRA or 401k. If 2% is good, well I am sure some caring politician will think 9% is even better. If we order people to start saving now, why in only 50 years we won’t even need social security.

    There is no end to the good ideas.

  6. Let me give a personal example.

    I MUST pay for my children’s education. Must. I can send them to public schools and pay the associated fees, send them to private schools and pay associated tuition and fees, or homeschool (which I do) and pay fees to public or private entities (or any mix thereof) for mandated testing. (note: the fact that I am taxed regardless in beside the point.)

    In the end I MUST pay or be punished by the state. Where is the cry over constitutionality and individual rights in this matter?

    Seems this question of constitutionality (OK, education is state issue) has been settled for the state and the collective years ago.

    If we are to get back to a state (never a steady state, mind you) of liberty, the argument is not at the margin (that which offends me personally), but at the core of an ever-more intrusive government.

  7. Jim:

    As you point out, education is a state issue.

    Also, public education is paid for by state income taxes (some states use property taxes or a combination of income and property – but lets not get to complicated).

    So, if you don’t pay state income taxes because of your income level, then you don’t pay for public education.

    But of course, your point is that some people have to pay for public education, and I agree that this is true.

    However, that is not the same thing as the Federal government ordering everybody to be educated. The Federal constitution is different (no police power – that is left to the States).

    The Federal government (up until now anyway) doesn’t order everybody to have auto insurance (that is left to the states). Even in the states, you don’t have to have auto insurance if you don’t own an auto.

    But nobody can argue they don’t have health related expenses.

    My problem is that regulating commerce is not the same thing as ordering commerce.

    I don’t think the Federal government can order a state or a person to buy something.

    They can tax and then buy it themselves (think weapons), or they can provide incentives via tax policy (think deductions and tax credits) – but they cannot just outright order everybody to buy something (in my opinion).

    I guess we will see.

  8. RickA says:
    24 March 2012 at 1:06 pm

    “The Federal government (up until now anyway) doesn’t order everybody to have auto insurance (that is left to the states). Even in the states, you don’t have to have auto insurance if you don’t own an auto. ”

    And even in auto insurance, states don’t require you to buy collision insurance. If you wreck your own car and don’t have collision insurance, tough luck. They require LIABILITY insurance, which protects other drivers when you injure THEM.

    Nobody brings up how insurance is a losing bet. Someone without much money makes the losing bet because of the unaffordable catastrophe of losing their house, etc. For a billionaire, getting fire insurance would probably be a waste of money since the billionare cane easily “book” the bet, and come out ahead in the long run.

  9. Alan:

    You are right – I had not thought through the difference between collision and liability.

    If the government mandate is upheld (speaking of insurance), why not order everybody to buy life insurance. After all, everybody dies (like everybody uses medical services). Think of those left behind, and how much better off they would be if everybody had a 1,000,000 life insurance policy.

  10. RickA,

    My point is I MUST pay for my children’s homeschool education, beyond taxation and what I feel is warranted. Must. I MUST pay fees to have them tested. Must. No opt outs allowed.

    Again, education is a state issue. But …

    You introduced another question begging fallacy — federalism. Just as with the concept of constitutionality, federalism has no true meaning. Sure, we all have opinions, but we are forced to accept, in the end (at the point of the gun), the majority opinion of the vaunted nine.

    To argue that something is constitutional (including the concept of federalism) is a chasing after the wind. Not even the Signers agreed what the document meant. And many, by their later political actions, refuted what we today hold out as constitutional guarantees.

    Concepts like the interstate commerce clause are dead letters. For the past 70 years, what a farmer grows for his own consumption is considered interstate commerce. Do you accept that? Then why not the anger years ago?

    We could argue the concept of healthcare being a capitation tax, etc. But what purpose would it serve? To fall into the line of “constitutional” is to accept the status quo, where the nine decide liberty for you. And you have no means to appeal their decision. But their opinion is collectively accepted in the end (a pseudo Hegelian dialectic, so to speak).

    So why are you (the greater you) fighting mad now? Why is this THE line? Especially when all other arrogations by the state are met with silence.

    Why is the WE hoppin’ mad over birth control and churches? Do I lose my right to conscience once I leave my church building? Does the right on conscience (assuming that the state has granted that to us) only apply to employees of religious groups?

    To accept the current notion, my church is to be protected, but not it’s members. Does this make sense? Maybe to those who see society as collectives, but what about those who see society as individuals?

    The point is this: The arguments over healthcare mandates may be intellectual fun, but they are distractions from the real issues. Define your system of ethics and stick to it. If folks have rights to life, liberty and property (happiness), then that is your ethics — the Constitution (as interpreted yesterday or today) be damned, so to speak.

  11. Perhaps I am missing some backstory. But the quote given (which I quote again) “Similarly in Parliament a bill is often opposed on the ground that it is unconstitutional and therefore ought to be rejected; but as no precise definition can be given of what is or is not constitutional,”

    would seem to apply to governments without a written constitution and a well established procedure for drawing precise definitions. Perhaps Great Britain or Canada, which for most of their histories had no formal constitution of the US type, empowered the Parliament under discussion in this citation.

  12. Pouncer,

    Please provide a precise definintion on what is or is not constitutional? Isn’t that the whole issue? Would we have our rights held on the balance of a 5-4 decision if such a definition existed? Would lower courts issue conflicting rulings, as well?

    Truly, no precise definition exists here in the US. Do you really disagree?

  13. Just exactly how does the commerce clause give the federal government the authority to regulate abortion? Or health care? I think that is the real question posed here. Any interpretation of the words that I can assemble says the federal government does not have such authority. Course, English is a funny language (at least according to the Supreme Court).

  14. As to the Commerce Clause, if you read a bit further, in Section 9, you find these two clauses:

    “No Tax or Duty shall be laid on Articles exported from any State.”

    “No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.”

    Taken as a whole, I personally believe that the original intent behind the Commerce Clause was to give the federal government the power to ‘level the playing field’ for interstate commerce. I do wish that the language was more explicit about that intent – as it’s come to be widely interpreted there really is no practical limit on the power of the federal government. In other words, the 9th and 10th amendments in the Bill of Rights now seem to be meaningless.

    While I strongly believe that ObamaCare is a gross violation of the Constitution and a dire threat to our freedoms, I also believe that the federal government does have the Constitutional authority to do many other things to regulate health-care. For example, I believe the federal government has the power to decree that states can’t prohibit citizens of the state from purchasing health insurance out-of-state, or mandate certain coverages be included or excluded on policies purchased from out-of-state health insurance companies.

    When I was a kid, I remember listening to my uncle go on and on very passionately about “state’s rights”. I didn’t understand most of what he said, and what I did understand I was inclined to dismiss. After all, if an idea was a good idea, why not make it the law for the whole country so everybody would benefit? With the benefit of age and experience I now realize that’s the equivalent of saying “Who needs WD-40? WD-1 is good enough for everybody and that’s what you’re going to have to use.”

  15. This is a good example of how a very complex subject can be stripped to a VERY misleading simplification directly aligned with one’s philosophical values.

    What caught my eye in this essay is the brief discussion of “tax” vs. “penalty” — with the Affordable Care Act’s insurance purchase mandate being a “penalty.” While the simplified remarks made are basically correct…the reason that mandate is not a “tax” appears to come down to some late/”last-minute” editoralizing of the statute Congress was drafting, pretty much in secret, and pretty much if not exclusively solely by Democrats…in direct hypocritical contradiction (redundant, I know) of our Dear Leader’s attestations while running for the office of POTUS to “reach across the aisle” etc. But I digress.

    Anyone one interested in actually understanding the legal nuances of the Affordable Care Act (ACA) really needs to read the analyses of the experts, including the judges finding it either Constitutional or Unconstitutional. There’s a couple of key Supreme Court of the U.S. (SCOTUS) cases that are hearalded as key precedents…however they fall a bit short of what’s involved with ACA.

    From what I can gather those finding the insurance purchase Mandate to be Constitutional reach that determination, embelleshments aside, by first concluding that Congress has the power to regulate health care much as it did, sans mandate. Then, since the mandate is a means to the overall constitutional end, that means is thus constitutional. In other words, intricate & convoluted circular reasoning that the ends-justifies the means provided the means lead to the particular ends. To the extent that holds, clearly something is very wrong with the USA’s legal system.

    Here’s some references one can readily locate on-line with the info provided — CRS has studed this as far back as 1994, and that/those analysis/ses is/are interesting, to put it mildly — the following includes analysis by those both “for” and “against” the mandate:

    Legal – Actual Cases & thier decisions:

    Cuccinelli v Sebelius, Civil Action No. 3:10CV188-HEH

    Stay Order: Florida v UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Case No.: 3:10-cv-91-RV/EMT (Header Reads: “Case 3:10-cv-00091-RV -EMT Document 167 Filed 03/03/11”), by Judge Roger Vinson.

    Order Granting Summary Judgment: Case No.: 3:10-cv-91-RV/EMT, 31 January 2011 by Judge Roger Vinson.

    Margaret Peggy Mead et. al. v Eric H. Holder, Jr. et. al. (filed in Wash. D.C.), Case 1:10-cv-00950-GK Document 39 Filed 02/22/11, US District Judge Gladys Kessler, February 22, 2011.

    Multiple States v Multiple Agencies, D.C. Docket No. 3:10-cv-00091-RV-EMT, Case: 11-11021 Date Filed: 08/12/2011 (304 pages).

    THOMAS MORE LAW CENTER, JANN DeMARS; JOHN CECI; STEVEN HYDER; and SALINA HYDER v BARACK HUSSEIN OBAMA, Case No. 10-CV-11156 (Header Reads: “Case 2:10-cv-11156-GCS-RSW Document 28 Filed 10/07/10”), by Judge GEORGE CARAM STEEH, October 7, 2010.

    THOMASMORE LAW CENTER, et. al., v BARACK HUSSEIN OBAMA, Appeal from the United States District Court
    for the Eastern District of Michigan at Detroit; No. 10-11156—George C. Steeh, District Judge Case: 10-2388; Argued: June 1, 2011, Decided and Filed: June 29, 2011, Before: MARTIN and SUTTON, Circuit Judges; GRAHAM, District Judge (Header reads: “Document: 006111000199 Filed: 06/29/2011” & on-line version is indicate by “File Name: 11a0168p.06,” which his printed on the cover of decision).

    Analysis – Congressional Research Service (CRS):

    “Individual Mandate and Related Information Requirements under PPACA,” by David Newman, August 22, 2011.

    “Requiring Individuals to Obtain Health Insurance: A Constitutional Analysis,”
    7-5700, http://www.crs.gov, R40725, October 15, 2010

    “Requiring Individuals to Obtain Health Insurance: A Constitutional Analysis,” 7-5700, R40725, July 24, 2009

    “Private Health Insurance Provisions in PPACA (P.L. 111-148),” April 15, 2010.

    THE BUDGETARY TREATMENT OF AN INDIVIDUAL MANDATE TO BUY HEALTH INSURANCE, August 1994.

    AN ANALYSIS OF THE BIPARTISAN HEALTH CARE REFORM ACT, October 7, 1994.

    Analysis – Heritage Foundation:

    “Whe the Personal Mandate to Buy Health Insurance is Unprecedented and Unconstitutional,” by Randy Barnett, Nathaniel Stewart, and Todd Gaziano; Legal Memorandum, No. 49, December 9, 2009.

    Analysis – CATO Institute:

    “BAD MEDICINE, A GUIDE TO THE REAL COSTS AND CONSEQUENCES OF THE NEW HEALTH CARE LAW,” by Michael D. Tanner.

    Also: “The Broccoli Test,” http://www.cato.org/publications/commentary/broccoli-test

    Analysis – SCOTUS Blog: http://www.scotusblog.com/category/special-features/health-care/ and http://www.scotusblog.com/2012/03/academic-round-up-86/#more-141303

  16. I’m still waiting for an actuarial analysis of the United States to estimate whether insuring the currently uninsured will actually lower premiums.

    Yes, the basic economic model of health insurance is that there is a downward sloping marginal cost curve (i.e. the people who will most use health insurance are the ones who are willing to pay more for it, the marginal customer is going to use fewer services and therefore cost less than the previous customer.) But, that model makes several serious simplifying assumptions: Heterogeneity in risk aversion and full information about the status of their health being major ones. When these assumptions are violated, you can get very different results and forcing everyone to insure doesn’t always end in an efficient result.

    One of the reasons I’m cynical is that the same people who scoff at “econ 101 naivete” when talking about other markets and talk about “homo economicus verses homo sapiens” put forth the naive econ 101 model for health insurance as if it precludes any argument against the individual mandate. They’re sceptical of economic models when they don’t like the results, but not when they like them. How’s the econ 101 model working in Massachusetts?

  17. “-one gasps-Sarah Palin…”

    Ok, I’m sold. Onwards with the individual mandate!

    It would, of course, be extended to having to get certificates in various Bible-study topics ranging from Creationism to God-hates-homosexuality, why-socialism-is-from-the-devil, how hippies are pathological liars, etc, etc.

    Oh, the humanity!