Balkinization  

Tuesday, March 23, 2010

Does Adam Winkler have an exaggerated fear of the Supreme Court?

Sandy Levinson

Adam Winkler offers some comments at the Daily Beast, which includes the following:

"Earlier this year, the Roberts Court invalidated a campaign-finance law that banned corporations from spending shareholders’ money to influence federal elections. Such laws have been a prominent feature of campaign-finance law for over a century. The court itself had upheld corporate political spending restrictions in candidate elections, the very provision upheld less than a decade ago by the Rehnquist Court.

In cases from abortion rights to affirmative action, the Roberts Court has already shown itself to be one of the most activist courts in recent memory. The court’s conservatives aren’t any more likely to support President Obama’s health-care agenda than the conservatives in Congress. Justice Anthony Kennedy, the swing vote on the court, is known to be a libertarian who probably won’t find much to like in the individual mandate.


Health-care opponents’ arguments against the law are without merit. But that doesn’t mean those arguments won’t be successful in the Supreme Court."


With respect to Adam, whose work I admire greatly, I think this is a bit overheated, and I continue to believe that it is extremely unlikely that even the current conservative Republican Supreme Court would strike down the bill. But let’s assume I’m wrong (I’ve been wrong before, see Bush v. Gore). Can anyone imagine the conservative Republican five joining a common opinion? Kennedy may be a libertarian, see Lawrence, but what about Thomas? I’m not aware that he has signed on to the program. And if Thomas writes on the basis of an “originalist” understanding of the Commerce Clause, does he really pick up Kennedy’s vote? And so on. So might one not have the additional spectacle, under the “Winkler prediction,” of five votes, distributed over, say, three opinions, striking down the most important piece of legislation in 50 years on the basis of theories none of which gets majority approval? There’s nothing truly exceptional about this; it comes with having a multi-member court that ultimately relies on votes rather than persuasive opinions. That’s what “should” have happened in Bush v. Gore, where it is unthinkable that Rehnquist, Scalia, and Thomas agreed with the Equal Protection argument of Kennedy and O’Connor, but they signed the per curiam anyway in order to avoid the unseemliness described above.


Returning to the substance of his comment, I’m no fan of Citizens United, but it does rest on a serious theory of the First Amendment (what part of “no law” do you not understand?) and, as many people have pointed out, it’s highly unclear what the consequences of the decision will turn out to be. I don’t see how one can easily extrapolate from Citizens United to a willingness to enlist in Randy Barnett’s campaign in behalf of a thoroughly tendentious “fundamental values” theory of the Constitution. One should recall, after all, that Randy lost Raich and couldn’t get Scalia’s vote. I see no reason to believe that Scalia would be more sympathetic this time around. After all, he also on many occasions, see, e.g., punitive damages, has demonstrated his commitment to “judicial restraint” in contexts that cut against his putative allies among conservatives. I think one should see these lawsuits as what they are, posturing by conservative Republican state attorneys general who believe it will help them achieve re-nomination and re-election or promotion to some higher office, and they’re being egged on by a distinct group of legal academics who have their own constitutional and ideological hobbyhorses to ride. (I mean this less critically than it might sound, given that I’m certainly not above riding such hobbyhorses; it’s one of the things that legal academics do.)


A final point: If the bill is really so unpopular, one would expect Republicans to recapture legislative majorities (and the White House in 2012) to make judicial action totally unnecessary because the bill would simply be repealed. But if, as I suspect, Republicans will not ride this issue to success, then by the time the Supreme Court gets the case, it would be clear that most of the American public realizes that any sane insurance scheme requires compulsory participation (though perhaps we should adopt a “libertarian waiver” that both allows people to refuse to purchase insurance and, at the same time, prohibit all hospitals receiving any public funds from treating anyone who in fact had the option to purchase insurance and declined it). I take it that would be perfectly constitutional and perfectly awful, which is one reason why no serious person suggests such a waiver. Instead, I have no doubt that libertarians who develop sudden illnesses or who are the victims of accidents would expect to be treated/subsidized in emergency rooms even if they had not bought insurance. And properly so, which is why we can force them to buy insurance in the first place.



Comments:

the font hurts my eyes
 

After Bush v. Gore it's hard to argue that his fear is exaggerated.
 

Of course his fear is exaggerated. First, as Prof. Levinson points out, there isn't 5 votes for a Randy Barnett-style repeal of the last 75 years of commerce clause jurisprudence (and I would note that this is a MUCH larger project than just repealing or limiting Wickard, as Barnett sought to do in Raich-- even if you repeal Wickard, the individual mandate is still constitutional, and you would really have to repeal the effects test and limit federal power to the regulation of materials that actually cross state lines in commercial transactions). If there were only three votes for Angel Raich (two of which have since left the court), no way are there five votes for this.

Second, the practical effect of this decision would be incomparable to any other Burger/Rehnquist/Roberts court action to date. Bush v. Gore was a one-off, because the only thing at issue was the presidential election. Lopez and Morrison concerned laws that could be invalidated without calling into question much else that Congress had done. Not so here. This is a huge program, the centerpiece of the agenda of a President who won a big electoral victory and the biggest partisan majorities in Congress in a generation, and to invalidate it, you would have to call into question hundreds of other acts of Congress which rely on the broad post-1930's understanding of the commerce clause.

The Supreme Court does not upset apple carts very often, and that is what would have to happen here.

(Indeed, one of the reasons that Raich lost is precisely that there was probably plenty of fear that even limiting Wickard could force the courts to invalidate lots of legislation that relied on the "aggregating" theory of the commerce clause.)

So no chance this gets repealed.
 

What needs overturning is the "Neener, neener" doctrine. That's the one where, if a citizen comes to the judiciary with iron clad evidence that the legislature has violated this or that procedural command of the Constitution, (The requirement for a quorum to do business, that both houses must pass the same bill, the origination clause...) the judge ritualistically sticks his fingers in his ears, and recites, "Neener, neener!". Or legal language to that effect, anyway.

"A final point: If the bill is really so unpopular, one would expect Republicans to recapture legislative majorities (and the White House in 2012) to make judicial action totally unnecessary because the bill would simply be repealed."

Let's assume sustained outrage over this. This fall, Republican gains result in a takeover of the House, but not enough Senate seats are in play. So, no repeal.

In 2012, Republican gains result in the Senate taken over, and a Republican President. At that point a vote to repeal takes place, and we find out which members elected in 2010 were lying about voting to repeal it.

In 2014, those members have been ousted, there's still a Republican President. But the private insurance system has already been destroyed, and there's no going back.

No, the fact that, eventually, pubic outrage might result in an unconstitutional bill being repealed, is no excuse not to strike it down. What's the point in having a Constitution if it's not going to be enforced?
 

It would be silly to assume the possibility of sustained outrage over the law. Millions of people will have insurance who didn't before, and most opponents of the bill will see that the country hasn't become socialist or fascist or experienced Armageddon. Universal coverage will become the accepted status quo, and, as we approach November, Republican politicians might even have enough sense not to raise the subject.
 

I'm not expecting outrage sustained on the order of a decade; People aren't built to be mad THAT long. But thinking that it's going to subside by the fall elections is just silly.
 

Actually, libertarians who think their current coverage is adequate come in two flavors: wrong, and super-rich. None of my acquaintance fall into the second category. They sure do talk purty though.
 

It's nice to see "restrained" SL at times. I keep on reading about him elsewhere, but he doesn't pop up on the blog that much any more.

Those who think the law is unconstitutional might have some "in the ether" reasonable approach, but it doesn't match long standing law. This includes as understood by Scalia and Kennedy.*

And, this underlines why you have to have perspective. Take abortion. The one ruling it had in that area is not very "activist" really. I'm not fan of the ruling, but it concerned one procedure and even there left open "as applied" challenges.

BTW, many think the so-called "mandate" is the worst part of this law. But, it won't be in place for a few years, and the first time only via a $95 tax/penalty. Is the case on that even ripe until then?

---

* As to the restraint of Kennedy's jurisprudence, see, e.g., Frank Colucci's recent book.
 

TPM had a good discussion:

http://tpmmuckraker.talkingpointsmemo.com/2010/03/could_scotus_be_the_death_panel_for_health-care_reform.php?ref=fpb
 

"Actually, libertarians who think their current coverage is adequate come in two flavors: wrong, and super-rich."

I think my current coverage is adequate; It's paid out tens of thousands of dollars over the last few months to treat my two simultaneous cases of cancer, without the least complaint. But I live in a two bedroom apartment and drive a borrowed car, strange behavior for somebody who's super-rich.

Perhaps what you mean is, "I personally wouldn't find any coverage somebody who wasn't super-rich could afford 'adequate', and nobody else is entitled to a different opinion."?
 

The courts need not reverse any CC precedent to hold that the power to regulate commerce does not authorize Congress to compel a person to purchase government authorized health insurance. Regulation means limiting or governing actual commerce and declining to purchase health insurance is not commerce.

The government may respond that declining to purchase insurance indirectly affects the economy and is thus commerce. However, the idea that people engage in commerce even when they do not engage in commerce is slightly nutty. Even Kennedy may not buy off on that one.

The better argument is that Congress is not compelling anyone to buy insurance, but rather taxing those who do not. However, the government is going to have to justify this as a tax to provide for the common welfare rather than an unconstitutional fine posing as a tax or capitation tax.

None of this is frivolous.
 

The courts need not reverse any CC precedent to hold that the power to regulate commerce does not authorize Congress to compel a person to purchase government authorized health insurance. Regulation means limiting or governing actual commerce and declining to purchase health insurance is not commerce.

Bart, there's no case in history that adopts the theory that if a regulation of commerce takes the form of a mandate rather than a prohibition, it is not within the scope of the commerce power. And for good reason. Lots of laws mandate lots of things. The environmental laws mandate pollution control devices. The auto safety laws mandate that the automakers purchase the materials for and install seatbelts. There is an insurance mandate for commercial trucking enterprises.

Further, even if your distinction were accepted, you'd still lose, because the mandate is clearly and squarely within the necessary and proper clause, because the whole scheme fails due to adverse selection without the mandate, and there's no question the rest of the bill regulates interstate commerce.

Bart, one can make a cutesy "argument" about anything. But it's completely stupid to really claim that if a regulation requires activity rather than forbidding it, it isn't really a regulation. And that's your argument. It's dumb and it doesn't have a single vote on the Supreme Court.
 

Yup, the bill is absolutely consistent with modern interpretation of the commerce clause, it's just that modern interpretation of the commerce clause isn't consistent with.. the commerce clause itself.
 

From Brett's mouth to Thomas' ear:

" ... it's just that modern interpretation of the commerce clause isn't consistent with.. the commerce clause itself."

Even Scalia recognizes that, yup, it's no longer modern but established, well established.
 

Yeah, so? It's still not consistent with what the damned clause ACTUALLY SAYS. And, no, it's not "well" established, if you mean by that anything more than a few decades tenure.

If you were tot call it "widely metastasized", I might agree with you.

And, "even Scalia"? I know it's some kind of doctrine among you undead constitutionalists that Scalia is a champion of originalists, but originalists know better.
 

Brett might take a shot:

" ... but originalists know better."

at identifying, in addition to himself and Thomas, such originalists who know better than Scalia.
 

By the way, Wickard (1941) goes back well beyond "a few decades tenure." Put that in your pipe and smoke it; hope it helps.
 

Sandy:

Focusing for the moment on the philosophical rather than the legal issue, I don't think your argument about the emergency room proves enough. All it proves is that the libertarian (along with the rest of us) should be required to purchase major medical coverage, not comprehensive coverage.

It seems to me that the argument for requiring comprehensive coverage has to be an argument from "public goods" and/or altruism.
 

Michael Dorf's FindLaw column today (3/24/10) titled "What Weight Should Congressional Precedents Have in Constitutional Interpretation? Lessons of the 'Slaughter Rule' Debate" that addresses Health Care Reform, originalism, "Burkeian/Hamiltonian perspective," and constitutional challenges to HRC is quite interesting, as it relates to recent topics posted at this Blog.
 

Since when does a minority party represent the "will of THE PEOPLE"?
 

A good defense of constitutionality.

The Findlaw article is interesting, including this quote:

Alexander Hamilton expressed what I am calling the Burkean perspective in Federalist 82. "'T'is time only," said Hamilton writing as Publius, "that can mature and perfect so compound a system, can liquidate the meaning of all the parts, and can adjust them to each other in a harmonious and consistent WHOLE."

I'm not sure what an "originalist" is anyways. Dilan has explained how the law follows what the Constitution "says." Are we to go by what it "means," perhaps Madison is instructive (as to the constitutionality of a national bank that he once went the other way):

As President, Madison signed the Second Bank Bill into law even though as a representative in the First Congress he opposed the bill because he believed Congress had no constitutional right to establish a national bank. But although he had voted against the First Bank Bill, by the time he was required to sign the Second Bank Bill as President of the United States, he recognized that "Congress, the President, the Supreme Court, and (most importantly, by failing to use their amending power) the American people had for two decades accepted the existence and made use of the services of the First Bank," and he viewed this widespread acceptance as "a construction put on the Constitution by the nation, which, having made it, had the supreme right to declare its meaning."

See here. But, as with those who told God to shut up when he wanted to help them understand the Torah ("you gave it to us, it's our time now"), perhaps "originalists" must work on their own. Given Brett's feelings about Heller, btw, Thomas might not fit the bill either.

[Lee: when they represent a majority of them but because of apportionment rules in the Senate, they might have a numerical minority?]
 

This comment has been removed by the author.
 

My comment to Lee refers to a situation that occurred after the 2002 elections.

As to P., it isn't just emergency rooms. The law provides various benefits they might at some point take advantage of. Or, members of their family. Likewise, the tax breaks for businesses and so forth would benefit them in various ways.

If you combine the fact that $695 a year isn't much anyways, surely not enough for comprehensive insurance, I'm unsure how even libertarians would find this law so unfair.
 

This comment has been removed by the author.
 

Dilan said...

BD: The courts need not reverse any CC precedent to hold that the power to regulate commerce does not authorize Congress to compel a person to purchase government authorized health insurance. Regulation means limiting or governing actual commerce and declining to purchase health insurance is not commerce.

Bart, there's no case in history that adopts the theory that if a regulation of commerce takes the form of a mandate rather than a prohibition, it is not within the scope of the commerce power.


Thank you for confirming my statement. It took about a dozen posts to get to that concession about a month ago.

And for good reason. Lots of laws mandate lots of things. The environmental laws mandate pollution control devices. The auto safety laws mandate that the automakers purchase the materials for and install seatbelts. There is an insurance mandate for commercial trucking enterprises.

Those are all limitations on actual commerce. The question is not what is permissible regulation of actual commerce, but rather whether declining to engage in the commerce of health insurance is still somehow engaging in commerce.

Further, even if your distinction were accepted, you'd still lose, because the mandate is clearly and squarely within the necessary and proper clause...

OK, clearly explain your theory of how the N&P Clause can authorize the Obamacare mandate to purchase health insurance if the CC (and the rest of Article I) does not provide this power.

Bart, one can make a cutesy "argument" about anything. But it's completely stupid to really claim that if a regulation requires activity rather than forbidding it, it isn't really a regulation. And that's your argument. It's dumb and it doesn't have a single vote on the Supreme Court.

Once again, the issue is whether declining to engage in commerce can still somehow be commerce.

The term regulate is useful in this query because its standard meaning is to govern or limit and thus reinforces the argument that commerce is an affirmative act which can be governed or limited. By definition, you cannot govern or limit inaction.
 

Bart:

Whether something regulates interstate commerce is NOT determined by isolating one thing and saying 'that's not commerce'. Wickard, McClung, and Raich all say you aggregate and look at the scheme as a whole. Thus, even if you were right that a mandate itself is not a regulation of commerce (which is a stupid argument), it would not matter so long as the bill as a whole constitutes a regulatory scheme affecting interstate commerce, any more than it mattered that Angel Raich's pot was not for sale.

As for necessary and proper, are you that dumb? The mandate is necessary for the preexisting condition rule and the exchanges to work. McCulloch v. Maryland says as long as there is a rational relationship between end and means, it falls within the power.
 

I think that many of these claims--social legislation is never repealed, the Supreme Court would never touch it, etc.--understate the degree of poison that has crept into the political system on all sides. I don't think you can avoid the fact that there is a very large group, perhaps 1/3 or more of the country, that believes Obama is essentially illegitimate and is unwilling to concede any, well, legitimacy to anything that he does. That doesn't mean the court will hold one way or another, but it means that presumptions from another age may not hold; we're in largely uncharted territory and prediction is quite hazardous.
 

If the bill passes Constitutional muster under the CC, and I think it will, then what Mr. Winkler, and all of us, should perhaps be fearful of is not the Supreme Court, but a future Congress, controlled by a mere majority from either political wing, that might mandate that we all purchase life insurance, or variable annuities, or Treasury Bonds, or any other product that such Congress deems to be necessary in its regulation of interstate commerce. I may be missing something, but every existing governmental mandate that I have seen mentioned is conditional, i.e., the mandate is imposed as a condition to participating in a regulated activity. It is true that Congress could condition access to any federally funded health care facility by requiring one to purchase federally mandated insurance, but that is not what it did. This is a slippery slope that might end up very badly, especially given that we have evolved over the past 20 to 30 years to a Congress inhabited by a majority of career political professionals, focused on establishing, solidifying, and perpetuating their positions, power, and financial well being, as opposed to a Congress consisting of members who were called to public service from broader and more diverse backgrounds. Mandates will potentially end up being equivalent to earmarks.mothypir
 

Paul:

I don't like the individual mandate. I think it's actually a non-solution to the problem of the uninsured-- you could just as easily announce that we are going to fix the homeless problem by mandating that the homeless buy or rent homes. I think it was created by policy wonks who were trying to figure out a way to insure the uninsured without admitting that someone would have to pay higher taxes to pay for it. And I think it's pretty well immoral to force people to buy insurance from a private sector company whose profit margin comes in denying them care.

So in a sense, I share your slippery slope concerns. I really do hope this doesn't become the way we solve problems in America.

But it's clearly constitutional. Indeed, I think conservatives need to learn the lesson they always accuse liberals of not learning-- a lot of things you don't like are perfectly permissible under the Constitution.
 

"pretty well immoral to force people to buy insurance"

Over 80% already have insurance privately or by the government. Some who don't do so for cost reasons that the subsidizes will help with. The homeless btw tend to be those able to get Medicaid.

The rest are not "forced" to buy something.* They are taxed if they don't, the money going to the system set up. Being "forced" to pay, e.g., to help fill the donut hole isn't imho "immoral."

If they don't buy insurance, there is a clear risk they will be burdensome to others, including when they get guaranteed care or go bankrupt paying bills, and not being able to pay debts.

---

* This set-up is like the Civil War draft where you could pay a fee to get out of it. OTOH, doing that to get out of jury duty is not allowed. There -- like school for minors -- you truly are "forced" to do it.
 

Dilan:

I agree with you, the mandate will be ruled Constitutional, which is, of course, the only standard by which we can truly determine whether it is or not. This is what gives conservatives and liberals so much angst - it doesn't matter what they think. Ultimately, the only thing that matters is what the SC rules.

Te current legislation will ultimately fail for economic reasons. Methods to game the new system will abound. It has already started. Third party insurance consultants are already advising small businesses on very simple ways to save hundreds of thousands of dollars per year by eliminating health insurance for employees without exposing the employees to any health care costs. Why buy expensive insurance for your employees when you can buy it for them after they become ill. Paying for routine health care expenses ($3,000-5,000 per year) and the meager tax penalty for not having insurance on behalf of the employee is a fraction of the cost of insurance and, in many companies, only a small percentage of employees ever exceed the $3,000 - $5,000 expense per year. The economic model simply doesn't work. Ultimately, the private insurance industry will have to bribe Congress to change the bill by materially increasing the tax penalties, or the industry will collapse. In any event costs will continue to spiral out of control. Like it or not, the answer will be to convert to a single payer system paid for by a federal VAT. By the way, properly constructed and transitioned, this is what should be done (sooner or later, and I know no one likes to talk about it, but this and unfunded Medicare and Medicaid liabilities have to be paid for), although almost no one will like the result in the short term, least of all doctors who will become civil servants.

I also agree with some of your statement "I think it's pretty well immoral to force people to buy insurance from a private sector company whose profit margin comes in denying them care." It is simply untrue that the profit margin of health insurance companies comes from denying care, although certainly denying care may improve that margin in the short term. By this reasoning though, shouldn't this extend to life insurance companies, auto insurance companies, and P&C insurance companies - all of which routinely deny coverage to people who have suffered losses?
 

Dilan said...

Whether something regulates interstate commerce is NOT determined by isolating one thing and saying 'that's not commerce'. Wickard, McClung, and Raich all say you aggregate and look at the scheme as a whole.

Wickard concerned the affirmative act of growing wheat and its indirect affect on commerce.

Katzenbach used the restaurant's purchase of interstate commerce as a pretext to claim Congress was regulating Commerce with the Civil Rights Act.

Gonzales is simply a replay of Wickard with pot instead of wheat.

In ALL of these cases, the appellant is taking the affirmative act of producing or purchasing goods, which is not the case here.

Now, if your point is that this series of wretchedly reasoned outlaw cases indicates that the courts reviewing Obamacare are more likely than not going to gin up another wretchedly reasoned outlaw opinion to justify Congress' latest abridgment of our liberty, I would not lay money that you are wrong.

As for necessary and proper, are you that dumb? The mandate is necessary for the preexisting condition rule and the exchanges to work. McCulloch v. Maryland says as long as there is a rational relationship between end and means, it falls within the power.

The N&P Clause states in pertinent part: "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers..."

M v. M and its progeny simply hold that the means Congress chooses to implement its foregoing powers must be rationally related, not that the N&P Clause authorizes Congress to act beyond the foregoing powers.
 

If they don't buy insurance, there is a clear risk they will be burdensome to others, including when they get guaranteed care or go bankrupt paying bills, and not being able to pay debts.

I have no moral objection to taxing the population, including those uninsured who cannot afford their own insurance, to pay for public insurance for everyone. That's how social security works.

I do, however, object to a plan that says that you have to give your money to an insurance company that has an economic incentive to deny you care. I think that's immoral.

It also blames the victims. The victims of poverty and the middle class squeeze who can't afford insurance, and the victims of insurance companies who don't want to deal with them. It blames them, rather than the system of private insurance, for the problem of the uninsured.

So yeah, I think the mandate is depsicable as policy. But it's perfectly permissible under the Constitution.
 

In ALL of these cases, the appellant is taking the affirmative act of producing or purchasing goods, which is not the case here.

Yeah, but that's like saying "in all these cases, it was daytime, and therefore it doesn't apply to this case which was at night". There's nothing in the text, history, or caselaw of the commerce clause that says that mandating something isn't a regulation of commerce whereas prohibiting something is.

That's your problem. You are screaming about a distinction that is nonexistent in the law.

M v. M and its progeny simply hold that the means Congress chooses to implement its foregoing powers must be rationally related, not that the N&P Clause authorizes Congress to act beyond the foregoing powers.

Bart, that's a nonresponse. The whole point of the necessary and proper clause is that if Congress is regulating interstate commerce, and needs to do something that isn't strictly speaking a regulation of commerce but which is necessary to carry the regulatory scheme into effect, it's allowed to do it. And McCulloch made the test even broader-- it doesn't have to even be strictly necessary, just rationally related to the end.

So you'd have to establish that imposing a mandate lacks even a rational relationship to the end of regulating the interstate insurance market through the reforms that the bill contained. Of course you can't show that, because there clearly is such a relationship.
 

I do, however, object to a plan that says that you have to give your money to an insurance company that has an economic incentive to deny you care.

The new law takes away the ability to deny care in various ways that were present before. There very well might be a benign insurance company out there.

Finally, you don't have to give your money to them at all. You can't pay some tax to avoid jury duty like you can here. In fact, when the tax/penalty kicks in, it is so low and hard to collect that it is an incentive to insurance companies to provide better care to attract those who would go that route.

Putting aside the fact I strongly reject P's implication that somehow these people aren't part of the system being regulated somehow. It's damn artificial really and as Jack Balkin noted, doesn't match reality.

It also blames the victims.

If you are poor, the law expands Medicaid coverage. If you are poor, you wouldn't be taxed the money at all.

If you are middle class, it helps you too. Some might get insurance with the assistance provided. Others are helped in various ways so that if they don't get insurance and have to pay the tax, it is a valid quid pro quo.

Few people don't buy insurance because they think the companies are corrupt. Some who don't want to but can't afford it. This law helps them. The rest can pay a low tax that helps the system as a whole and them too.

Again, this isn't like being forced to go to school. A child has to go to school, private or public somehow. No tax or "fine" will prevent it.
 

The new law takes away the ability to deny care in various ways that were present before.

Only if you believe that state regulators will effectively rein in insurance companies. In most states, the regulators are captured.

Bear in mind that it was ALWAYS illegal in every state to deny coverage that an insurer had contracted to provide. The problem was enforcement in a world of regulatory capture. That hasn't changed.

If you are poor, the law expands Medicaid coverage. If you are poor, you wouldn't be taxed the money at all.

Medicaid stinks. It is a terrible program administered by states which provides substandard care and goes bankrupt in recessions.

If anyone cared about the poor and middle class, they would have put them on MediCARE or in the Veterans' system.

Again, this isn't like being forced to go to school. A child has to go to school, private or public somehow. No tax or "fine" will prevent it.

1. Without a public option, it is nothing like the school mandate. Imagine a school mandate where the only schools available were rapacious mail-order career colleges. That's the insurance industry.

2. School is offered FREE to all citizens. This is a mandate to PURCHASE. That's very different.

3. You can argue the state acts in parens patriae when it comes to children. It's a lot different when the government tells adults that they have to buy something they don't want and which could cause them huge hardship if they have to fight the insurance company when they are ill.

This is an awful, awful piece of public policy.
 

The government would and is encouraged to deprive people of necessary benefits that are guaranteed to them. Your distaste of Medicaid underlines this.

If we expanded Medicare or veteran's care, I don't know if it suddenly would be better. Both are good in part because of the limited number of people, including those (unlike the poor) who are deemed "deserving."

I think this goes past your original concern. Suddenly, not only "insurance companies" but various governmental programs are a problem. Also, again, some people want to have insurance and now don't because of reasons the law will fix.

And, yes, I said it's not like a school mandate. Kids have to go to school. Parents can't just pay a tax/fine to avoid it. In fact, people pay school taxes, even they have no kids. Everyone uses or might use the health system, even if they never have kids.

Again, you don't HAVE to buy anything. If you don't, in I don't know 2016 or so, you will have to pay $695 a year. The government don't even have the same means to collect it. Meanwhile, various benefits are provided for which the tax dollars pay for.

What "huge hardship" is there for middle class or higher people to pay less than $14 a week? If there is, you are probably too poor to be taxed. Medicaid might be crummy, but the new law didn't make it so.
 

P.S. The new law does reduce the ability of the insurance companies to deny coverage. This goes beyond the "contracted to provide" issue -- some things simply were not contracted at all.

Also, we have a few years before the "mandate" kicks in. I'm all for pushing a public option before then. Like filling the donut hole, it's quite possible to add things.
 

"I agree with you, the mandate will be ruled Constitutional, which is, of course, the only standard by which we can truly determine whether it is or not."

Hm, then what standard to the members of the Supreme court have, to make that determination? They pull it out of their divine arsholes?

I've seen this exact reasoning before, only it's when religionists tell me the only basis for determining if something is good or evil is God. But how do you know that God is good?

Legal realism? It's a religion for lawyers, complete with papal infallibility. Don't expect anybody else to worship your nine gods, though.
 


The government would and is encouraged to deprive people of necessary benefits that are guaranteed to them. Your distaste of Medicaid underlines this.


Medicaid doesn't work because it separates responsibility (states) from funding (federal).

Medicare and the VA, which are funded by the entities responsible for their operation, work fine.

If we expanded Medicare or veteran's care, I don't know if it suddenly would be better. Both are good in part because of the limited number of people, including those (unlike the poor) who are deemed "deserving."

No, they are good because one's a single payer and the other is a national health service. If someone is denied care, they call their congressman.

Also, again, some people want to have insurance and now don't because of reasons the law will fix.

That's why we have a government, Joe.
 

Everyone would be wise to separate their ideology from their intellect (a very difficult exercise for most). I think Dilan is trying very hard. Others, maybe not so much....

Also, get your facts straight. School attendance is a matter governed by the States, not the Federal government. This is what happens when you start to let ideology govern your intellect. You guys are starting to sound like politicians - talking before, or in lieu of, thinking.
 

No, they are good because one's a single payer and the other is a national health service. If someone is denied care, they call their congressman.

Medicaid recipients never call their congressperson or local officials? Liberals in Congress and elsewhere help them out quite often too. Under Bush, concerns were brought out about veterans care.

Again, blame it on the set-up if you want, the overall reason for the neglect is largely the idea that we can delegate to the states etc. for certain classes of people.

Anyway, if you want to change the Medicaid system, fine. The new law didn't cause that problem. Again, you aren't just upset about private insurance, but now you are upset about government insurance too. Not that the new law doesn't help Medicare too.

School attendance is a matter governed by the States, not the Federal government.

Cut the patronizing "I'm so much above the fray" bit. No one here isn't aware of this fact. Schools (including btw by Dilan) are being discussed as part of a general conversation as to "mandates" and so forth.

Besides, federal legislation, particularly funding (there is a whole department, e.g., handling it), affects school attendance in various ways. Schools are regulated by the feds in various respects.
 

Medicaid recipients never call their congressperson or local officials?

Their congressperson has nothing to do with the implementation of the program, and their local officials aren't responsible for its passage. This sort of separation is deadly. I oppose any expansion of Medicaid for any reason.

This bill takes the worst parts of our health care system, Medicaid and private insurance, and expands them.
 

Their congressperson has nothing to do with the implementation of the program

This is quite true, but congresspersons carry a lot of weight. People call them all the time to inquire into other agencies in order to get stalled actions (like asking the Social Security office for a new number or the passport office to expedite an adjudication of citizenship). It is one of the functions of the congressperson and their office to make such inquiries and apply pressure on the government--even those agencies that they have no association with or control over--in order to make that government work for the little guy.

Now that may not be a constitutionally assigned function, but it's how my family has used the office for my entire life, often with excellent results. Indeed, I think the change that congresspersons can make at the micro level may outstrip that which they can hope to make at the macro level, especially given the polarized nature of things in Washington.
 

PMS underlines my point.

The political will to expand Medicare past its long accepted function to cover senior citizens is not there. Even the House only passed a watered down public option.

Should nothing be done until the will to expand Medicare is present? Or, should people who aren't covered get the best deal possible in the current climate, that is, Medicaid and private insurance?

The lesser evil idea seems to be present here. It's not like I'm denying the "evil" part.
 

HD kaliteli porno izle ve boşal.
Bayan porno izleme sitesi.
Bedava ve ücretsiz porno izle size gelsin.
Liseli kızların ve Türbanlı ateşli hatunların sikiş filmlerini izle.
Siyah karanlık odada porno yapan evli çift.
harika Duvar Kağıtları bunlar
tamamen ithal duvar kağıdı olanlar var
 

Post a Comment

Older Posts
Newer Posts
Home