jryan

They aren't ignorant of the debt, they just believe in drinking yourself sober.

That isn't to say that the previous president was a spend thrift, either... but the current administration seems hell bent on making him appear that way.

By the way, this also leads right back to the ignored wisdom of the US founding fathers. By the US Constitution, the most readily acceptable way to create and regulate a health care system is at the state level. What we have almost working in the EU is essentially state level socialized medicine.

Of course, Massachusetts tried their damnedest to recreate European style social program, and have earned top honors as most debt ridden state in the union.

And that state's health plan was the model for Obamacare.

We're screwed.

More important in that chart of external debt, ParanoiA, is the percent of GDP for the individual countries. Look at the UK, and all the other Social Democracies that Obama and the Democrats seek to emulate. They are drowning in debt.

The elephant in the room there is that the entire world could not afford to float us that much credit. That amount of credit almost doesn't exist... and in practical terms does not. The GDP of the entire planet was $57.5 trillion in 2009, if we ran UK social programs (debt equal to 365% of GDP) we would need to borrow $51 trillion.

And that isn't even counting internal debts to Social Security and Medicare which total $107 trillion at the moment, and since they are internal debt are also pinned to our inflation... so we can monetize ourselves out of those obligations.

But hey, 16 million people now are forced to buy health care they didn't want and the other 15 million are saved a visit from a social worker to sort out their medical expenses. Fiscal catastrophe is a small price to pay for such wanted and unwanted conveniences!

Oh those saintly liberals, all peace and love and tolerance!

Not to mention that the racial and sexual epithets have not been corroborated by the video, and the video shows that the "spitting" incident was accidental.

Here is the video.

The blogger sees more than there is in the video... or fails to understand the difference between purposeful spitting and spray.

Claiming "Republicans don't want to improve the country" is begging the question, Bascule. We must first assume that the Democrat bill was good for the country before we can accept the accusation. Not everyone assumes it is a good bill.

Agreed. If the Republicans make compromises half a dozen work days after being accused of being uncompromising, I will agree that the accusation was invalid.

Of course, the Democrats will have to actually be compromising as well... which they have yet to be in the last year.

And I would take that seriously were there evidence that the Republicans wanted to do anything more than disrupt the debate.

Only if you define dissenting views as disruptive.

I guess bedtime really is 11:30 and after the vote to adjourn passed.

Well, as was pointed out in the original question, the Republicans leaving at 2:00pm was within the rules. I took the objection to mean they were not acting in good faith, or with decorum. My examples were of Democrats behaving in a similar fashion.

And are you sure this was Democrat, not Republican hypocrisy?

http://www.newsmax.com/InsideCover/pelosi-energy-congress/2008/08/01/id/324774

Brendan Daly, a Pelosi spokesman, told The Associated Press said Republicans "should go home to their districts and explain their record of obstructing common-sense proposals to address the pain at the pump being felt by American consumers and businesses."

This is just partisan posturing, Mr. Skeptic., and you know it. It is also begging the question on part of the Democrats. The "common-sense proposals" are defined by the folks shutting off the lights and cutting off the microphones.

Here's the aftermath:

http://www.wilsoncenter.org/index.cfm?fuseaction=topics.print_pub&doc_id=478988&group_id=180829&topic_id=1412&stoplayout=true

They made a bill and compromised with the Republicans on it shortly after returning from the recess.

Returning after the break to compromise is not a defense for the poor behavior. I suppose when Republicans decide to finally cooperate with Democrats you will excuse them the poor behavior?

If you like "Orange versus lighter" you should see "carrots versus microwave"

Do a youtube search though as doing it yourself can be bad for you and your microwave.

What can you do with a lighter and an orange? This is a simple one

Answer: Humanity?

The list I linked is exclusively elected Republicans who hold public office of national stature (i.e. Congress). Your list has 1 current Democratic Congresswoman and 1 dead Democratic Senator, along with a bunch of celebrities and Al Gore. Kinda apples and oranges there.

Which, of course, is why I provided all the other links and lists in my post. I could also provide more, if needed.

I know it's hardly the point, but some of those are not hypocrisy. For example, arguing that tax laws which benefit you should be changed is not hypocrisy.

Well no, and when you make a quick list like that there will be some that don't fit hypocrisy. Arguing that a tax law be changed to benefit you, on the other hand, would be hypocrisy if you are a tax-happy liberal.

But there is still plenty there that is hypocritical.

LIst of Democrat hypocrits

And then there is ...

a short list of more liberal hypocrits:

# California Democrat Nancy Pelosi receives large-scale financial support from organized labor – while she and her husband own a vineyard and stakes in a hotel and a restaurant chain that are all non-union shops.

# "Environmentalist" Pelosi also has a stake in a posh country club that skirted environmental protection provisions.

# Ted Kennedy fights for the estate tax and rails against tax shelters – while benefiting from trusts and private foundations that have shielded most of his family’s fortune from the IRS.

# The deeply personal reason why Kennedy opposed a plan to provide clean alternative energy to Cape Cod.

# Robert Kennedy Jr. proclaims that it’s not moral to profit from natural resources, but receives an annual check from his family’s oil profits.

# Al Franken attacks conservatives because they "lack diversity," yet less than 1 percent of the employees he has hired over the past 15 years were African-American.

# Socialist radical Noam Chomsky charges that the Pentagon is the "most hideous institution on earth" – while being paid millions by the Pentagon over the last 40 years.

# Ralph Nader says unions are essential to protect worker rights – but fired his employees when they tried to form a union.

# Barbra Streisand urges Americans to cut back on their conspicuous consumption – while spending $22,000 a year to water her lawn.

# Billionaire George Soros maintains that the wealthy should pay higher tax rates, but holds the bulk of his fortune in tax-free overseas accounts.

# Hillary Clinton says 13-year-old girls are capable of deciding to have abortions without parental consent – but prevented her 13-year-old daughter from getting her ears pierced.

# Why Schweizer – who spent two years researching liberal hypocrisy – calls his discoveries "stunning."

.... as well as....

Here's a gay conservative that keeps a blog about liberal hypocrisy

and...

LA Times article about hypocritical Democrat tax cheats

And there's plenty more from a quick Google search. Those in glass houses shouldn't throw stones.

But an interesting point on hypocrisy... while there are long lists of hypocrites on both sides is hypocrisy actually an inherently BAD thing? I have often seen hypocrisy used on both sides to show how the underlying ideology is faulty, but to me that seems counter intuitive.

If I were a smoker and told my children to never smoke I would be a hypocrite while my teaching would be sound.

For hypocrisy to actually be BAD you have to first believe that the underlying rule that the person is breaking is unsound. Not paying taxes, for example, is hypocritical for a liberal who believes in high taxes, but is only wrong because, whether the tax is right or wrong, we all believe we should pay our taxes.

So in this way we all seem to have it backwards. Liberals should be demonizing LIBERALS for their hypocrisy, and Republicans demonize Republicans when the hypocrisy is strictly ideological. Where we can both agree on a hypocrisy being bad is also where we can all agree on what a proper behavior should be.

Maybe that is more for the philosophy thread, but I figured since we pulling out yard sticks here we ought to give some thought to what we are measuring.

Merged post follows:

I can't recall the dems reacting in this fashion recently when they didn't get their way

 

"GOP Senators Refusing To Work Past 2PM, Invoking Obscure Rule"

 

http://www.huffingtonpost.com/2010/03/24/gop-senators-refusing-to_n_511639.html

House Democrats literally lock out Republicans after Obama claims there will be transparency

Democrats turn off lights in house chambers and kill microphones to stop debate

And so on.

 

You have to be careful where you get your news -- if it sounds biased then odds are it's not the whole truth. And making assumptions based on it is even worse -- your link didn't say that the pool already existed; you added that yourself.

The pools do exist in most states already. And as a social worker one of my jobs was to match these same children with state and federal programs. For example, for chronically ill children it was common to get them into either SSD or SSI through the Social Security administration, and from there they are eligible for Medicare and Medicaid... but in most cases even that step was unnecessary as SCHIP and CHIP and numerous other state and national programs already existed to meet the child's insurance needs.

Heck, in many cases the primary assistance was coming from pharmaceutical companies, hospitals and private charities.

Another strange thing about this health care bill, and I think the white wash is rather interesting....

Elimination of "preexisting condition" denials for children not immediate, contrary to President Obama's claim. Apparently the rules were supposed to take effect immediately for children and in 2014 for adults but someone way back when the Senate voted on the bill without reading it failed to read it....

Anyway, that is no big deal, really, as I don't think there will be major resistance to a new bill changing the law on minors to 2010. But here is the passage I found interesting:

As someone who worked as a social worker, this statement is not a surprise, but it is probably a surprising revelation to many. What they are saying, though not as clearly as I am about to, is that medical coverage for children with preexisting condition denials has been around for a rather long time. This bill really does nothing but transfer what was a state managed program into Federal control.

As such, this bill was never about getting children their cancer treatment.. that was already happening contrary to the sick children paraded in front of cameras. It has always been about giving the Federal Government control over that treatment.

Merged post follows:

Auto insurance or otherwise, the primary issue whose constitutionality is being challenged is the mandate itself, and time and again it has been reinforced that congress possesses the power to impose a mandate to purchase a good, even if that purchase transaction is performed with a private company.

 

The strongest case which can be made rides on the 10th amendment, and AFAICT, even that case is pretty weak given precedent.

 

This healthcare legislation is not precedent setting. The precedent has been set long ago, as the links I've shared in this thread display, and IMO challenges to healthcare constitutionality are exceedingly unlikely to succeed.

I think "time and again" is a bit too strong a phrase, as the only time I have seen that such a mandate was ever issued was in 1792, and was largely abandoned once the state could afford to equip actual armies, and repealed in 1903 when the program was determined to produce very poor quality militias.

And in any case it was never meant to compel a citizen to spend large sums of money every month for the rest of their life.

As I said before, I'd like to see the liberal response to a ramrodded reinstatement of the Militia Act of 1792 we'll see exactly how keen they are on the Commerce Clause and the reach of it's powers.

Yeah, term limits would be nice. No more career politicians.

I would want to also see an amendment that would required each spending measure to require it's own vote. No more earmarks, ever.

Also, for fun, require that every Senator and Congressman pass a multiple choice exam on the contents of each bill before they are allowed to cast a vote other than "present".

Well much as I support individual liberties, I don't see the government ever letting go of the powers it has granted itself via the commerce clause and creative interpretation of the Constitution. The war on drugs, legal drinking age, seatbelt laws, for example. Healthcare really is just one more on the pile (which is why I think this question is rather off topic, and in any case I think everyone already spoke their mind on this topic as it relates to healthcare).

I don;t think they will go down without a fight, but the SCOTUS doesn't have a dog in these fights other than the law. It's certainly not a perfect check or balance, but it's something, at least.

Hm, I guess the government deals more with popularity than with economics. Accidentally denying someone medicare will get them very bad press, but letting a few people get away with fraud probably not so much.

 

I think popularity may be one of the reasons they didn't have the public option. If they did, then the government would have to make some choices as to which procedures to cover, and people might blame them for being callous. Much better to pay an insurance company to take this bad press.

It is a shamefully anecdote driven process, for sure.

Can you give an example of one (other than the one below)?

Well, there is the Louisiana exemption from Medicaid costs, house staffers who wrote the bill possibly exempted themselves, though the religious exemption touted by Democrats late last year apparently is also in doubt as the exemption is referenced in the bill, but in a section that doesn't appear to exist. That will cause some headache, I think.

But wait, who pays for giving care to the uninsured? Somehow I don't think it is the insurance companies (else you don't need insurance...). I think the way it goes is that these costs are required of hospitals, who pass this on as a cost of business to both the insured and the uninsured that can pay for it. So I think this money should go to directly to the hospitals, not either the insurance companies or paying customers. Then the hospitals don't have to pass on this cost to anyone.

Well, that's true. It should go to the health care providers directly. You and I know that the Fed will take their cut first, though.

If this is so bad for health insurance companies, then why is their stock going up? I think this points to the people who actually know about the health insurance industry strongly disagreeing with you (much as they might complain publicly).

Because the stock market is the stock market. How good of an indicator was the stock market when it came to Bear Sterns, Lehman Brothers, Enron, Madoff Investment Securities, FNMA, FDMC and so on? You could point to any of them in 2007 as signs that their plans were fantastic...

I would guess that the investors see a large group of 16 million or more healthy adults who will be buying insurance in the coming year.. but that is no endorsement of the plan beyond the short term.

Some relevant postings for those interested:

 

 

http://www.thedailybeast.com/blogs-and-stories/2010-03-23/how-to-kill-health-care-in-court/2/

Are opponents correct that Congress has never before required large numbers of people to purchase something? No. In fact, the Founding Fathers themselves included an “individual mandate” in a law way back in 1792. The Militia Acts were a series of bills that first organized state militias in America’s early years that required “free able-bodied” men to serve with their own gun. It didn’t matter to the Founding Fathers if someone preferred to spend his money elsewhere. He was required to have a gun, even if that gun had to be purchased from a private seller.

 

People often assume the Founders thought Congress’s powers were very narrow. But even they thought it was acceptable to impose an individual mandate to buy something on a large number of citizens when necessary for the public welfare. If Congress’s power over state militias could justify an individual mandate to buy something, so would Congress’s power over interstate commerce or over taxes.

 

Even some legal conservatives admit that the arguments against the bill are very weak. Given these strong precedents, why would anyone believe the Supreme Court would still invalidate the individual mandate?

The militia act was an emergency power that did not require the permanent retainer of the gear when it was not needed.

But I suppose that will be a good test of the Democrat zeal, however. The first bill passed when under a Republican House, Senate and Presidency should be a reinstatement of the Militia Act of 1792 requiring that all Americans purchase a firearm.

http://volokh.com/2010/03/23/what-will-the-courts-do-with-the-individual-mandate/

In closing, let me also stress that the arguments against the individual mandate are anything but frivolous. For reasons I explained here, it would be difficult to strike down the mandate without limiting (if not overturning) the rationale of Gonzales v. Raich, but it would also be difficult to uphold the mandate without eviscerating what little is left of Lopez and Morrison.

It will shape up to be a far reaching ruling to be sure. Also note that his argument is also not a matter of slippery slope, but rather of legal precedent that does, and the moment of decision, have far reaching application.

I don't totally agree with the Gonzalez-v-Raich comment, but it is certainly something to consider. The primary difference in that case is that the Federal Government was enforcing a prohibition on a product rather than demanding a perpetual purchase of a service.

Also, an interesting link in these first two articles is that a challenge to Gonzalez-v-Raich (via a finding of unconstitutionality in the health care bill) will open the door to both state rights to control banned substances as well as state rights in setting their own gun laws exclusively.

It really is a sticky wicket that the SCOTUS has gotten itself in over the years. This challenge could bring several contradictory rulings to a head. In this case US-v-Raich that expanded the power of Congress under the commerce clause and -v Lopez and -v Morrison where laws were struck down for exceeding authority ("federal mandated gun-free zones" and "Violence Against Women Act" respectively)

http://abovethelaw.com/2010/03/baker-hostetler-partners-eager-to-get-their-name-all-over-health-care-reform-lawsuits/

On the other hand, do you really see SCOTUS overturning major health care reform on constitutional grounds? I don’t. I just don’t see how the Court takes this opportunity to stop the relentless expansion of the interstate commerce clause by overturning the most contentious public policy issue of our generation.

 

Which kind of leaves Baker Hostetler holding the bag for what may be interpreted as purely partisan lawyering…

 

<...>

 

Do people in good faith really think that health care reform is illegal? Or are we in a situation where the political losers are simply trying to subvert the ballot box?

 

These lawsuits are not surprising. They are a bit disappointing.

 

Via Adam at SCOTUSblog

I see it as a distinct possibility. I think for the first argument to work the U.S. will have to establish the criteria for a state of emergency, which is easy to say but not so easy to do. Also I wouldn't be so sure that the 1792 mandate will be found compelling given the uniqueness of the circumstances surrounding the act itself.

It would be hard to argue lack of Federal funding for provision of insurance which enacting a bill that itself creates enormous debt itself.

Merged post follows:

Folks, I think it is pretty clear from iNow's sources that the government can, has, and will continue to wield the sort of power required to have the healthcare bill, and that the Supreme Court has and will continue to let them. That you personally disagree is fine, but it really will make little difference. Furthermore, I think it is rather off-topic since it applies to so many different things the government does (and has done and will continue to do). Also, regardless of anyone's opinion, the Republicans will take this to court.

I don't think it is such a slam dunk as the court has been wrestling with the commerce clause for a while now while the current court, at best, waffles with limitations under the commerce clause. It appears, at least in Lopez, Morrison and Raich that the drift in the court is toward affirming federal prohibitions under the commerce clause while limiting proactive measures that congress grants to itself.

So in summary: yes, this is another expansion of government power, and yes, you now have a little bit less economic liberty. And yes, based on history, they probably will get away with it.

Well, it doesn't have to be. It will certainly be interesting to hear the arguments on this one and the deliberations of the court.

How about we focus on something more specific to healthcare: what are the good points in this bill, and what are the bad points? Could they have done something better?

Good Points: I would have to say the attempt to reign in Medicare fraud and abuse... though I think that is a pipe dream.

Bad Points: I don't think they have thought through this legislation very carefully. It is easy to find loopholes in the program that do nothing but punish health insurance companies while funneling money into the Federal coffers.

For example, by all rights the fines that people will pay for not having insurance should, by all rights be funneled back into the insurance companies who are the only losers under the new program. I've found nothing in the bill that shows this will happen.

It seems designed to ruin the health insurance industry while also making it harder for physicians to stay in business.

Here ya go:

 

http://www.nytimes.com/2009/10/26/opinion/26krugman.html?_r=1&partner=rssnyt&emc=rss

And reform remains popular. Earlier this year, many conservatives, citing misleading poll results, claimed that public support for the Massachusetts reform had plunged. Newer, more careful polling paints a very different picture. The key finding: an overwhelming 79 percent of the public think the reform should be continued, while only 11 percent think it should be repealed.

 

Interestingly, another recent poll shows similar support among the state’s physicians: 75 percent want to continue the policies; only 7 percent want to see them reversed.

 

<...>

 

But just as reform advocates predicted, the move to more or less universal care seems to have helped prepare the ground for further reform, with a special state commission recommending changes in the payment system that could contain costs by reducing the incentives for excessive care.

 

<...>

 

Still, if the Massachusetts experience is any guide, health care reform will have broad public support once it’s in place and the scare stories are proved false. The new health care system will be criticized; people will demand changes and improvements; but only a small minority will want reform reversed.

So how does Paul Krugman establish "more careful" in this context other than that this poll agrees with his expectations?

Your point seems to brush over peoples reasoning for their lack of support. What your post suggests is that people don't support it because they don't want it, when (in fact) a large portion of peoples lack of support is because they actually wanted far MORE... like a universal system, or even just one with a public option. Trying to lump those people with the ones who fear big government and whatnot is a bit disingenuous.

I never made a qualification of the dissent one way or the other, iNow. Arguing that you can toss out public dissent because you believe it is split on two sides of the debate misses the point entirely.

My point? It's important to look at why people say they didn't support the current bill, because MANY of them wanted something far bigger than what we got.

Well, sure it is, because it is important to know a broad base of what Americans want in their legislation and create programs that the majority of Americans support. They failed to do that in this case by a rather wide margin.

I think this guy says it best jryan,

 

"According to the Constitution's commerce clause, Congress has the power to "regulate commerce . . . among the several states." Traditionally, insurance contracts haven't been considered commerce, which is why they've been regulated by the states. But given that Congress has long been allowed to regulate other "economic" activities—activities that affect interstate commerce, even if they don't qualify as interstate commerce themselves—the Supreme Court isn't likely to object to congressional regulation of health insurance."

 

http://blog.newsweek.com/blogs/thegaggle/archive/2010/03/23/the-gop-s-last-best-hope-to-hobble-obamacare.aspx

And again, this isn't a "regulation of health insurance" that is in question here. It is the constitutionality of the Federal Government mandating purchase of health insurance without the ability to opt out.

I have seen drinking age used in other articles to justify this. The Federal government sets a national drinking age, and then pins highway maintenance money to it's enforcement. States like Louisiana, however, for a very long time opted out of the state mandated drinking age and repaired their own roads. They had a choice.

There is nothing in the wording of the law that would allow the states, the employers or the individuals the ability to opt out of buying health insurance.

Ironically, nor should there be as the program doesn't even begin to work without mandatory participation. The whole reason that mandatory participation is included in this bill is it is necessary to offset the increased cost due to the clause eliminating pre-existing conditions.

As I pointed out earlier, with the elimination of pre-existing conditions health care becomes unworkable without universal participation, otherwise everyone would opt out of insurance until they are actually seriously ill. It would be silly not to since maintenance health costs are far lower per year than are premiums.

Also, ironically, the bill has a fine for not participating that is $750 or 2.5% of income (whichever is more). If the average family health plan is $13,375 annually then that makes paying the fine the better financial choice for anyone making less than $260,000 a year (assuming a fine of less than half the cost of average insurance premiums).

After all, without pre-existing conditions you can always buy health insurance when you get seriously ill and spend the half of the savings on other goods and services until you do get sick and sock the rest of the money away to pay for incidental medical bills throughout the year.

And no, paying a fine is not the same as opting out.

Merged post follows:

Also, I would like to point out that it appears that I could pay fines and pay a lot less for my families insurance than I do now as I will be guaranteed coverage if one of us does get very ill. As such, arguing for the old plan is counter to my immediate financial interest.

I oppose this bill because in the long run it will bankrupt this country whether I pay into the new system or not.

I always suspected it had more support than conservative pundits believed. (that's probably one of those memes that can be traced back to some Fox news commentator and watch how it spreads until people think it's the truth.

 

I hope people are aware enough to be able to see what affects the bill actually has and be able to ascribe credit or blame to where it's really do. I have realistic expectations about this, though.

Look at the broad base of polls before the vote was made, ecoli. Nobody was showing majority support for the bill. That is as close to reality as the polling will get for a while.

I wouldn't put much stock in afterglow polling. This is the same polling phenomenon that had Obama at 65% approval after the election while garnering 52% of the vote.

The polls right up until passage showed a 10.7 point advantage to the opposition. At this point a lot of people are hoping beyond their previous judgment that this bill will work out.

Slippery slope comments are argumentative fallacies, and I will disregard it as such.

This is not a slippery slope argument. It a flat statement of the precedent being set. This is part of the process that the SCOTUS will use to determine if the law will stand.

That is not what the study concluded. You are 1) focusing solely on one bullet point while ignoring others, and 2) misrepresenting that one bullet point. All it said was that IF congress wanted to avoid 10th amendment related challenges they COULD make state funding contingent on their approach to healthcare.

But they DIDN'T make the state mandates contingent on acceptance of funding. With the connection to funding it is still a choice of the individual states. This law does not give the states, or the individuals, the choice.

Here it is for others to see:

Federalism:

The 10th Amendment and principle of state sovereignty in the Constitution prohibit the federal government from commanding the states to implement federal law or policies that would interfere with state sovereignty. This is referred to as the “anti-commandeering” principle. A federal employer mandate covering state and local government workers appears consistent with existing Constitutional decisions but still might be susceptible to challenge under the Tenth Amendment

Exactly. But the bill does not make it an option to the states contingent on funding.

<...>

If Congress would like the states to implement an insurance mandate, it can avoid conflicts with the anti-commandeering principle by either preempting state insurance laws or by conditioning federal funds on state compliance.

It wouldn't be a mandate then.

You're confident it was not?

Yes I am.

Since the above was limited to the summary, here is more from the full report:

 

 

http://www.law.georgetown.edu/oneillinstitute/national-health-law/legal-solutions-in-health-reform/Individual_Mandates.html

ince the 1930s, the Court has never set 10th Amendment limits on Congress’s exercise of its power to tax or power to spend. In modern times, the 10th Amendment to date has been used to limit only Congress’s regulatory powers under the Commerce Clause.

<...>

No commandeering element is needed in a federal mandate for private health insurance since this would not require state implementation. Instead, Congress could simply pre-empt state insurance laws, as it now does through ERISA. However, Congress might prefer state implementation for federalism reasons expressed in the McCarran-Ferguson Act, and to better reflect varying local conditions. If so, Congress would need to find some means to induce states to act.

 

There are two recognized approaches: conditional spending and conditional pre-emption. Using the first approach, the previous section explains that Congress could condition the receipt Using the first approach, the previous section explains that Congress could condition the receipt of relevant federal funds on states enacting complying legislation. Using the second approach, Congress could simply allow states with complying laws to opt out of pre-emption and direct federal regulation. The Court in New York v. United States36 stated that, “where Congress has the authority to regulate private activity under the Commerce Clause, we have recognized Congress' power to offer States the choice of regulating that activity according to Federal standards or having State law preempted by Federal regulation.”

 

For instance, Congress has used conditional pre-emption in HIPAA, which applies a federal “fall-back” or default law to states that do not enact laws providing for guaranteed issue and portability of group health insurance (among other requirements). Although the constitutionality of this part of HIPAA has not been challenged, it is widely regarded as a successful balance of federalism concerns.

 

The remaining federalism concern is whether Congress could apply an employer mandate to state and local government employers. The answer appears to be uncertain. The Court in Garcia v. San Antonio Metropolitan Transit Authority, overruled a prior decision to hold that state and local government employees are subject to federal minimum wage and overtime laws. However, the Court did not provide a helpful conceptual framework for a 10th Amendment analysis. Instead, it held in Delphic fashion that "we need go no further than to state that we perceive nothing in the overtime and minimum-wage requirements of the FLSA … that is destructive of state sovereignty …”

 

Although it is impossible to know how extensive this precedent is, mandating employee benefits appears indistinguishable from mandating wage levels, and therefore is supported by Garcia.

It IS distinguishable from Garcia as it doesn't simply madate employee benefit levels offered by the employer but also mandates that the employee must buy them. It would be indistinguishable if the federal government mandated income levels at the SAMTA and then ordered citizens to work there.

This is, AFAICT, rather irrelevant to the point. Congress has the authority to regulate commerce, and this has been supported time and again by SCOTUS. If citizens refuse to purchase insurance, it raises rates on other citizens, and therefore impacts commerce directly and falls well within congressional power.

But that is circular logic as the other citizens also have the right to not purchase health insurance. You can't force one group to buy a commodity so that another group who wants the commodity can afford it.

In hopes of moving beyond my example of the auto mandate, I'll share the below interesting exploration of the question of mandate constitutionality:

 

http://www.thehealthcareblog.com/the_health_care_blog/2009/12/is-it-unconstitutional-to-mandate-health-insurance.html

Is it unconstitutional to mandate health insurance? It seems unprecedented to require citizens to purchase insurance simply because they live in the U.S. (rather than as a condition of driving a car or owning a business, for instance). Therefore, several credentialed, conservative lawyers think that compulsory health insurance is unconstitutional. Their reasoning is unconvincing and deeply flawed.

 

<...>

 

Constitutional attacks fall into two basic categories: (1) lack of federal power (Congress simply lacks any power to do this under the main body of the Constitution); and (2) violation of individual rights protected by the “Bill of Rights.” Considering (1), Congress has ample power and precedent through the Constitution’s “Commerce Clause” to regulate just about any aspect of the national economy. Health insurance is quintessentially an economic good. The only possible objection is that mandating its purchase is not the same as “regulating” its purchase, but a mandate is just a stronger form of regulation. When Congressional power exists, nothing in law says that stronger actions are less supported than weaker ones.

This is a poor argument. All the author has done so far is establish that mandates are really just regulations with the rationale being nothing more than "just because".

An insurance mandate would be enforced through income tax laws, so even if a simple mandate were not a valid “regulation,” it still could fall easily within Congress’s plenary power to tax or not tax income. For instance, anyone purchasing insurance could be given an income tax credit, and those not purchasing could be assessed an income tax penalty. The only possible constitutional restriction is an archaic provision saying that if Congress imposes anything that amounts to a “head tax” or “poll tax” (that is, taxing people simply as people rather than taxing their income), then it must do so uniformly (that is, the same amount per person). This technical restriction is easily avoided by using income tax laws. Purists complain that taxes should be proportional to actual income and should not be used mainly to regulate economic behavior, but our tax code, for better or worse, is riddled with such regulatory provisions and so they are clearly constitutional.

Again a weak argument. The Federal Government has the ability to set taxes and tax credits. In this case the tax credit would be used which is an incentive, which is not a mandate either. Also it again makes the false, or yet unproven, assertion that mandates are regulations.

Arguments about federal authority deal mainly with states’ rights and sovereign power, but the real basis for opposition is motivated more by sentiments about individual rights - the notion that government should not use its recognized authority to tell people how to spend their money. This notion of economic liberty had much greater traction in a prior era, but it has little basis in modern constitutional law. Eighty years ago, the Supreme Court used the concept of “substantive due process” to protect individual economic liberties, but the Court has thoroughly and repeatedly repudiated this body of law since the 1930s. Today, even Justice Scalia regards substantive due process as an “oxymoron.”

This is, as I stated earlier, most likely the argument that the Federal Government will use. As such they will need to establish that universal health care is a sufficiently compelling interest to deny the citizen right to property. But here the argument runs into a problem.

Under both liberal and conservative jurisprudence, the Constitution protects individual autonomy strongly only when “fundamental rights” are involved. There may be fundamental rights to decide about medical treatments, but having insurance does not require anyone to undergo treatment. It only requires them to have a means to pay for any treatment they might choose to receive. The liberty in question is purely economic and has none of the strong elements of personal or bodily integrity that invoke Constitutional protection. In short, there is no fundamental right to be uninsured, and so various arguments based on the Bill of Rights fall flat. The closest plausible argument is one based on a federal statute protecting religious liberty, but Congress is Constitutionally free to override one statute with another.

This is a bizarre argument as they claim there is no requirement to get medical treatment, yet they also claim that should you want that treatment it should be a right. If they argue the fundamental right of treatment decoupled from economic consideration (as they have) then the conclusion is that the Federal Government can not limit or regulate treatment.

Without health care being a fundamental right they have a hard time arguing that there is a compelling need for the mandate.

If Constitutional concerns still remain, the simplest fix (ironically) would be simply to enact social insurance (as we currently do for Medicare and social security retirement) but allow people to opt out if they purchase private insurance. Politically, of course, this is not in the cards, but the fact that social insurance faces none of the alleged Constitutional infirmities of mandating private insurance points to this basic realization: Congress is on solid Constitutional ground in expanding health insurance coverage in essentially any fashion that is politically and socially feasible.

As I said before, taxation and providing a service is not automatically the same as mandating the purchase of a good or service. If they successfully make that connection there will be a rather amazing precedent set that could easily see "Buy American!" turned from a simple slogan to a Federal mandate to boost the economy.

And here:

 

http://www.law.georgetown.edu/oneillinstitute/national-health-law/legal-solutions-in-health-reform/Individual_Mandates.html

This paper analyzes whether Congress can legislate a health insurance mandate and the potential legal challenges that might arise, given such a mandate. The analysis of legal challenges to health insurance mandates applies to federal individual mandates, but can also apply to a federal mandate requiring employers to purchase health insurance for their employees. There are no Constitutional barriers for Congress to legislate a health insurance mandate as long as the mandate is properly designed and executed, as discussed below.

Having read the executive brief they have made no arguing substantively different than above. As such, I don't agree with the determination for the same reasons already stated.

The only interesting difference is that they make claim that the Federal Government can issue such mandates and enforce them through tax-and-spend rights and by tying federal funds to states on state adherence to the federal mandates. This is interesting for a few reasons.

First it is interesting as in that form of implementation the Federal Government agrees in principle with the fact that they have no authority for such mandates, and choose instead to buy state complicity (states do have such rights).

Second, for such a piece of legislation to work it would have to be financially beneficial to the state to comply with the federal mandate. Also I am pretty sure that that mechanism needed to be in the bill when it was passed into law.

Well here's my suggestions, for biotechnological choices:

Option 1: Protein designing software, such that you give the program specific requirements for the protein and it gives you the code for that protein. Assume an average PC can either tell the shape of 1000 average sized proteins per second, or within a day can give a protein with a given (relatively simple) property.

 

Option 2: A cheap computer-DNA interface. Assume that it consists of a chip costing about $100 with a large array of DNA read/write heads that can read from DNA to electronic signals or write to DNA given electronic signals, at the same speed and error ratio as DNA Polymerase.

 

Option 3: A power plant; it is a genetically engineered plant that can produce electricity at about half the efficiency of a regular plant (the other half is used to maintain the plant). Just plug it into the grid. Assume the plant is capable of storing extra energy as sugars during the day to provide power overnight.

Ooops, missed those.

#1 and #2 would be useful but would probably need a good deal of understanding to not be dangerous. As such, I don't think we are ready for them.

That leaves #3 for me, with the only concern being that there would be a strong push by humanity to supplant existing ecosystems with those plants.

My stance is that this will never happen, in much the same way that the requirement to buy auto insurance and the requirement to buy home insurance are not unconstitutional. Those are both mandated by the government, and are perfectly constitutional.

The automobile insurance example fails on two fronts.

First, nobody is required to buy a car, so the mandatory nature of of auto insurance is attached to the freedom to buy, or not buy, a car.

Second, mandatory purchase of health insurance is also not like mandatory auto insurance because the auto insurance mandates are a STATE law, not a federal one.

By the way, it's not illegal for states to mandate the purchase of health insurance. This is the central function of the Massachusetts insurance reform. Which is apparently not against the Massachusetts constitution.

We'll see what happens, though. I concede the possibility of being wrong.

It could go either way, but I think there are strong grounds for overturning that bit of the law which in turn would make the rest of the bill completely unworkable.

I would guess that the Federal Government will defend their stand on "human rights" grounds, arguing that health care is a right. This would grant them precedent via the Slavery argument, which was arguably a matter of Federal mandates on state commerce.

But the inalienable right argument has a serious downside to it in that by arguing for the bill on those grounds they will lose their ability to argue that the federal government can deny any health care coverage at all. Due process for denying individuals these rights would be rather onerous.