Patterico's Pontifications

1/31/2011

Analysis of Florida Obamacare Ruling: An Enlightened Decision (Update: Jennifer Rubin States the Obvious)

Filed under: General — Aaron Worthing @ 6:07 pm

[Guest post by Aaron Worthing; if you have tips, please send them here.]

Update: To Glenn, thanks for the Instalink.

Update (II): Jennifer Rubin catches something I missed.

Update (II): Ilya Somin has analysis, here.

My title is kind of a pun because one thing that leaps out at the start is that Vinson is not giving a simple rote discussion of the case law.  He takes time to discuss the views of the founders and the entire evolution of law under the Commerce Clause, and in many ways is trying to mimic the great jurists of the past.  He is, in that way, a man of the Enlightenment—consciously paying attention to the values of that period.  Thus, “enlightened” in that sense, if not enlightened in the ordinary meaning of the word.

Consider this passage, for instance, in the opinion:

If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power,”…, and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended.

Now compare it to this section from Marbury v. Madison, discussing the theory that the Courts should obey a statute even if it is unconstitutional:

This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that, if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the Legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

But the Great Chief Justice (John Marshall) and Judge Vinson are asking the same basic question.  It is a variation of the question “if they can do this, what can’t they do?”  Only it adds an additional wrinkle, asking, “if they can do this, then why does the constitution pretend to limit the power of the Federal Government at all?”

There are several passages that also strike me as persuasive.  For instance, most of the time discussion of the historical meaning of the Commerce Clause is not very useful because we have passed those limits ages ago.  But this line gives any reasonable reader pause at the threshold the Democrats have breezed past:

It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.

And it touches on a point I made.  If Obamacare is legal, then Congress essentially has the power to ban boycotts:

I mean consider a simple example.  Rosa Parks one day decides she is not giving up her seat to a white man even though a law purports to require her to, and as a result, she is arrested.  In response Martin Luther King, Jr. and many others lead a boycott of the bus system.  But, according to the court in Liberty University [a case upholding the mandate], Congress could pass a law requiring every person to use a city bus for transportation where it is available, and thus outlaw the Montgomery Bus Boycott.

The judge does not, as I did in that post, fully develop this right to boycott argument, but instinctively the judge understands it.

There were a few lines that struck me as rhetorical “shots” (if you excuse my metaphorically violent language) at different targets, which I don’t approve of as a lawyer (although part of me smiles anyway).  For instance, at one point he confronted the argument that, in theory, sooner or later we will all need health care, pointing out that the same could be said about food.  Then he writes:

Or, as was discussed during oral argument, Congress could require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system.

Now, show of hands, is there anyone here who doesn’t think this was sparked by this?

And when discussing whether the mandate was necessary to the law as a whole, the judge seemed to take a shot (oh, there I go using that word again) at Obama himself in Footnote 30:

On this point, it should be emphasized that while the individual mandate was clearly “necessary and essential.” to the Act as drafted, it is not “necessary and essential” to health care reform in general. It is undisputed that there are various other (Constitutional) ways to accomplish what Congress wanted to do. Indeed, I note that in 2008, then-Senator Obama supported a health care reform proposal that did not include an individual mandate because he was at that time strongly opposed to the idea, stating that “if a mandate was the solution, we can try that to solve homelessness by mandating everybody to buy a house..”

That seems to be an attempt to throw (candidate) Obama’s word’s in the face of (President) Obama.  And at the same time, passages seem to be designed specifically to appeal to Justice Kennedy with six citations of his discussions of the limits of federal power.  It’s a great tactic to appeal to Justice Kennedy, but this judge should not be engaged in that tactic. Of course there is no line that is so clearly a shot (gasp) or what have you, but it’s a disquieting trend in the decision.

Next , it’s worth noting that the government kind of screwed itself when talking about the application of the necessary and proper clause.  First, they tried to argue that the mandate was lawful under the necessary and proper clause.  I have written about this argument before:

[O]n the surface, there is some appeal to using the Necessary and Proper Clause.  As I have said, and the Feds have argued, if the mandate is struck down and the rule on pre-existing conditions and similar provisions are retained, then this would implode the health insurance business.  So that seems kind of necessary, right?  But we will see in a moment, that isn’t enough.

And it was not enough for Judge Vinson, either, writing:

One of the amicus curiae briefs illustrates how using the Necessary and Proper Clause in the manner as suggested by the defendants would vitiate the enumerated powers principle (doc. 119). It points out that the defendants.’ Are essentially admitting that the Act will have serious negative consequences, e.g., encouraging people to forego health insurance until medical services are needed, increasing premiums and costs for everyone, and thereby bankrupting the health insurance industry — unless the individual mandate is imposed. Thus, rather than being used to implement or facilitate enforcement of the Act.’s insurance industry reforms, the individual mandate is actually being used as the means to avoid the adverse consequences of the Act itself. Such an application of the Necessary and Proper Clause would have the perverse effect of enabling Congress to pass ill-conceived, or economically disruptive statutes, secure in the knowledge that the more dysfunctional the results of the statute are, the more essential or “necessary” the statutory fix would be. Under such a rationale, the more harm the statute does, the more power Congress could assume for itself under the Necessary and Proper Clause.

Then he says:

Ultimately, the Necessary and Proper Clause vests Congress with the power and authority to exercise means which may not in and of themselves fall within an enumerated power, to accomplish ends that must be within an enumerated power.

Which I read as being essentially the same as my argument:

The correct reason why the necessary and proper clause will not avail the government requires us to look at that constitutional language again: “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers” (emphasis added).  In other words it is not just a power to do something that is generally “necessary and proper,” but only to “carry[] into Execution” a valid exercise of congressional power.

I go on to explain that the mandate does not carry the other powers into execution; it just mitigates the damage of a valid provision of the law.

Look, I am not saying the judge read anything I wrote.  In fact I am positive he didn’t.  I am just saying he and I think alike.

But as I said, the government screwed itself with this argument, and here is the reason why.  After striking down the mandate the court considered whether the law is severable.  Now there are several interesting notions here.  First, the court noted that not only was there no severability clause, but Congress cut it from a previous draft and knew (or should have known) that the mandate was controversial and likely to be challenged in court.  The court then concludes that the decision to leave out the severability clause might have been intentional.

Which again bears some resemblance to my previous writing on the subject:

And of course there is a policy reason for not wanting a severability clause, and therefore believing its exclusion was intentional.  As the administration admits above, without the mandate, many provisions of this law would drive the insurance industry out of business.  But if the severability clause was inserted, it might very well mean that these industry-destroying provisions would remain in place.  So by leaving out the severability clause, they might have in fact saved the insurance industry.

But the court also notes that if there is no severability clause it doesn’t mean that you automatically assume that the entire statute rises and falls as a whole.  Instead, the issue falls back on the default rules:

it’s a two part test: does the rest of the law even work without the invalid portion?  And if it does, is it still the case it is evident that but for this provision, Congress would not have passed this law?

And that is exactly where the government screwed itself with its necessary and proper clause argument.  They failed to convince the court that the law was necessary to carry the valid provisions into execution, but in their attempt, they succeeded in convincing the court that it was necessary to avoid serious disaster in the insurance industry and thus they made it obvious that without the mandate, this law would not have passed.  Indeed, it is such a clear logical blunder, you wonder if it actually was a blunder—or did Obama administration lawyers decide they would prefer to tank the entire law rather than see it enacted without the mandate?

(Well, either that or the lawyers involved are morons. And given some recent professional experience, I am more open to that argument than ever.)

Also, it should be noted that a few commentators have considered the failure of the anti-Obamacare forces to obtain an injunction against the act as some kind of victory.  It really isn’t.  Instead the court reasoned that a judgment declaring the law to be unconstitutional is sufficient relief to the plaintiffs because “there is a long-standing presumption that officials of the Executive Branch will adhere to the law as declared by the court. As a result, the declaratory judgment is the functional equivalent of an injunction.”  (internal quotation marks removed.)  In other words, he felt that the Federal Government would try to obey the law without the court formally ordering its obedience.  But believe you me, if the Obama administration ignores this ruling, the court can and certainly will revisit the matter and issue an injunction.

Finally, on a note of style, I will say that compared to the previous Virginia case striking down Obamacare, this decision exhibits far better writing.  Judge Hudson in Virginia seemed to constantly say, “well, the plaintiffs say this and the defendants reply with that” and never made it clear what, if any, of their reasoning he agreed with.  By comparison Judge Vinson has written an opinion that sets out exactly what he thinks of the law and does so with some eloquence.  While I do not appreciate what appears to have been pot-shots at Justice Kagan and President Obama, I think overall this is a far more sound and persuasive opinion.

Update: Jennifer Rubin points out the obvious. The severability argument is not a crazy decision by the judge. It was conceded by Obama Administration lawyers:

In considering this issue, I note that the defendants have acknowledged that the individual mandate and the Act’’s health insurance reforms, including the guaranteed issue and community rating, will rise or fall together as these reforms ““cannot be severed from the [individual mandate].””

Which means I have egg on my face for missing that. Oh well.

She argued that the Obama Administration didn’t see this coming. Really? Obama was a constitutional law professor. Are you telling me he wasn’t good at that job, either? Forget the validity of his birth certificate, are we sure his Harvard Law diploma is genuine?

[Posted and authored by Aaron Worthing.]

96 Responses to “Analysis of Florida Obamacare Ruling: An Enlightened Decision (Update: Jennifer Rubin States the Obvious)”

  1. So as promised, here is the analysis of the ruling.

    Aaron Worthing (73a7ea)

  2. you’re wrong and I didn’t bother to read your post and I also didn’t bother to read my links.

    Comment by kmart

    Dmac (498ece)

  3. Dmac

    lol, now he doesn’t even need to post. lol

    Aaron Worthing (73a7ea)

  4. Very well done, sir. Perhaps we should start calling this blog Aaron’s Analysis (no disrespect intended to Mr. P.)

    Side point, on the right to boycott:
    If you believe the portions of the Civil Rights Act that applies to private businesses are constitutional, then in fact you believe that Congress has the power to impose or forbid boycotts.

    This is the libertarian argument against the CRA, which Rand Paul rather ineptly raised last year: government mandated segregation (a la the Jim Crow laws) and government mandated integration (a la the Civil Rights laws) are two sides of the same coin–government intrusion into the right of free association. In segregation, government tells you whom you can not associate with; in integration, government tells you whom you must associate with.

    kishnevi (a991d1)

  5. And given some recent professional experience, I am more open to that argument than ever.

    Oh, these are stories I wanna hear…

    Scott Jacobs (d027b8)

  6. Is there supposed to be a link at the end of this line?

    Now, show of hands, is there anyone here who doesn’t think this was sparked by this?

    Leatherneck (676ccd)

  7. leather

    no, a video that disappeared. grrr. will fix. (dang wordpress)

    Aaron Worthing (73a7ea)

  8. Kudos to Vinson, who undoubtedly knows he’s seen his last promotion. He’ll never get another hearing in the judiciary committee, ever.

    I hope I’m wrong but have seen how the Schumers and Leahys of the world’s greatest deliberative body operate.

    Chris (6b0332)

  9. Not being a lawyer and aware of appropriate lawyerly behavior, I thought the concept of mandating broccoli (or arugela) was entertaining, as well as quoting Senator Obama’s previous views on mandates.

    Of course, I don’t mind broccoli, or most vegetables, though I don’t have much use for parsnips, turnips, or any other ‘nips.

    MD in Philly (3d3f72)

  10. “This ruling is well out of the mainstream of judicial opinion.”

    According to Stephanie Cutter at the White House blog who has a very predictable spin on the decision.

    daleyrocks (479a30)

  11. leather

    btw, don’t interpret my “grr” as irritation at you. i am thankful for you pointing that out. and as you can see the video is restored.

    Scott

    I can’t say anything without compromising my client’s confidentiality. Except i think i can say this. i recently dealt with a lawyer so bad at his job i am tempted to send him a copy of a book on legal writing, because he apparently has no idea how to even START doing it. i am not joking. i literally was showing my client an old copy of my favorite book on the subject, and showing him where this lawyer was breaking cardinal rules of good legal writing.

    Aaron Worthing (73a7ea)

  12. md

    i agree, it was amusing. but wrong, for the judge to say it, imho.

    Aaron Worthing (73a7ea)

  13. Well Aaron, nothing personal, but I’m glad he wrote the opinion and you’re analyzing it rather then the other way around.

    Of course, if he simply stirred up more hornets to deal with than necessary by it, that would be a shame.

    Then again, it was the 9th circuit the Suprmes griped at, not this guy, they’re the ones who ought to think twice abnout what they write.

    The missing video adds a lot. In fact, I’m not sure I ever actually saw that before, though I had known about it. Quite the dodge.

    MD in Philly (3d3f72)

  14. Chris, he’s a senior federal district court judge, which means that he’s mostly retired.

    SPQR (26be8b)

  15. Aaron, thanks for fixing the video embed…quite apropos, and I read your growl as you intended. I agree Kagan won’t like being reminded of her skewering by Coburn, but I doubt if it will change anybody’s vote.

    Chris, I suspect that, at 70 years old, Judge Vinson isn’t worrying about a Supreme Court appointment.

    Leatherneck (676ccd)

  16. I’m not completely sure about this, but I think that Judge Vinson saved the Obama administration from another faulty argument.

    The administration argued that the individual mandate was a tax, not a penalty. Judge Vinson rejected this.

    But if it was accepted as being a tax, then wouldn’t the law be invalid? If I recall the legislative history correctly, the version of the bill that Obama signed was passed by the Senate, and then was passed by the House.

    Any bill that raises taxes must begin in the House. This one didn’t, so it legally cannot raise taxes. If the administration had prevailed on this point, and the judge had accepted it as being a tax, the bill would have been overtly unconstitutional and no commerce clause or necessary-and-proper argument could have saved it.

    Steven Den Beste (99cfa1)

  17. 14) He has held the line, like Hudson in Va, and Feldman in Tx, re the drilling moratorium.

    narciso (e888ae)

  18. Ergo, the same bill could be introduced as a tax and pass muster.

    Votes count.

    Ag80 (e03e7a)

  19. Breaking News – Rep. Anthony Weiner still pissed over omission of public option, which would not have impacted constitutionality of law:

    “He tweeted:

    We know this : the public option is constitutional. #stillpissedwegaveuponthat

    Weiner had been a leading proponent of the public option during the months-long healthcare debate in Congress. But his party’s leadership had to cut it from the bill after centrist Democrats in the Senate refused to vote to advance legislation that included the controversial provision.”
    http://thehill.com/blogs/twitter-room/other-news/141315-rep-weiner-still-pissed-about-public-option

    Observers want to know when Rep. Weiner is ever not pissed.

    daleyrocks (479a30)

  20. Steven

    I think actually they found some way to get around that. now I am not an expert on this exact point of law, and I am too lazy to do research on it right now but let’s start with the text. “All bills for raising Revenue shall originate in the House of Representatives.”

    notice it doesn’t say “all taxes” and indeed there are many ways to raise revenue besides taxes. there are bonds, for instance. So i would wonder if the mandate would still be seen as raising revenue?

    Second, even if not, there were other measures in the law that were labeled as taxes. Vinson rested his argument in part on that fact.

    Also the provision doesn’t say it has to be passed in the house, first, but only that it has to “originate” in the house. So that might provide the needed wiggle room. Because even if the mandate is not a tax, there are definitely other provisions of the law that were.

    Aaron Worthing (73a7ea)

  21. notice it doesn’t say “all taxes” and indeed there are many ways to raise revenue besides taxes. there are bonds, for instance. So i would wonder if the mandate would still be seen as raising revenue?

    I don’t believe so. Maybe the penalties for failing to follow the mandate could be argued as such, but the mandate does not, in and of itself, generate revenue. All it does it, arguably, is keep costs from exploding as people pick up coverage only when they need it.

    And since I don’t think you can generate revenue from failing to follow an Unconstitutional mandate, I suspect that argument wouldn’t fly…

    Scott Jacobs (d027b8)

  22. This is a first! A never before interview with both President Obama and Senator Obama on the individual mandate.

    http://strongasanoxandnearlyassmart.blogspot.com/2011/01/interview-with-president-obama-and.html

    Major Mike (5876c3)

  23. Also the provision doesn’t say it has to be passed in the house, first, but only that it has to “originate” in the house. So that might provide the needed wiggle room.

    No, because however you want to look at it, what was singed into law started in the Senate. The House passed a separate bill, and after Reconciliation the Senate bill is what went to Obama.

    Scott Jacobs (d027b8)

  24. # 16 – yes a tax does have to originate in the house. My recollection was the first version was passed in the house, then went to the senate with serious modifications, with the house passing the senate’s version. since the original bill started in the house, then it met the test of starting in the house

    joe (93323e)

  25. We just saw a bill with taxes in it that was passed by both houses turn out to be unconstitutional because, incompetently, the bill originated in the Senate.

    I think it is a textual thing – that the bill that is passed by the Senate has to have a HR title. The Senate has cored out a House passed measure to “amend” it to what they want, and that trick has been upheld.

    SPQR (26be8b)

  26. does the pot shots at kagan ala broccoli make more imperative that she recluse herself?

    joe (93323e)

  27. Obama so bad wants our little country to force his perverted socialist health care scheme down people’s throats with the imprimatur of the Constitution

    I don’t think that’s gonna happen, bumblef. At the end of the day you’re a pompous codswallop what will be renowned if at all solely for your prodigious ability to squander.

    happyfeet (ab5779)

  28. Honestly, I think the shot about broccoli originally comes from Bush the Elder hating the stuff, thus the wondering if the Govt could require you to eat it.

    Scott Jacobs (d027b8)

  29. It is so amusing to see lawyers and judges (same thing) argue constitutionality when they bend over backwards to avoid reality.

    Why don’t they just get with the real world and say that the constitution (in their opinion) says that anyone has the right to call 911 or go to an ER and be treated under the law, and then let the lawyers or collection agencies deal with the bill after the gummint has fronted it?

    Anyone here in favor of letting the constitution fans who can’t pay their way die in the streets if they don’t have cash or insurance?

    Elind (9e06ea)

  30. This just goes to show how poorly this law was drafted, with no one really willing to take credit
    for it, medicare and medicaid didn’t depend on such
    a mandate

    narciso (e888ae)

  31. Lovely Strawman, Elind…

    The fact is, there were several things they could have done that would have improved HC, and the market for insurance, but they did literally none of them.

    Congress overstepped itself in the passing of a 2000 page bill that none of them had read.

    Deal with it, f**kwit.

    Scott Jacobs (d027b8)

  32. “Why don’t they just get with the real world and say that the constitution (in their opinion) says that anyone has the right to call 911 or go to an ER and be treated under the law, and then let the lawyers or collection agencies deal with the bill after the gummint has fronted it?”

    So we re institute slavery for Doctors and health care workers?

    As we have said everyone has a right to legal representation should it be legal for any individual to walk into any lawyer’s office and demand his unlimited services free of charge?

    And food?

    And utilities?

    Machinist (74634b)

  33. elind

    > Anyone here in favor of letting the constitution fans who can’t pay their way die in the streets if they don’t have cash or insurance?

    i am in favor of enforcing the thirteenth amendment and saying no one should ever be forced to work for anyone.

    i suspect that regardless, most won’t.

    > constitution fans

    So, like Phil Hare, you don’t care about the constitution? and you feel that congresspersons, presidents, judges and other government officials should not obey the oath they swear upon taking office, to uphold the constitution?

    Shouldn’t everyone be a constitution fan?

    Aaron Worthing (73a7ea)

  34. Look Scott, after only one day before at this site, I am already used to the expletives (coyly hidden with asterixes for reasons nobody knows).

    If you have an argument for the difference between relying on the fact that we, as Americans, won’t let anyone die regardless of insurance or money, versus the argument that those who could pay for insurance can spend it on something else if they wish and the rest of us can pick up the bill if necessary; then make your point!

    Elind (9e06ea)

  35. hey ur name backerds spells dnile did you know that

    it’s true

    happyfeet (ab5779)

  36. If Obamacare is so good, why the 727 waivers to well connected corporations and unions,

    narciso (e888ae)

  37. narc @ 37

    that’s a feature, not a bug.

    Aaron Worthing (73a7ea)

  38. I see already that the simple question I asked is difficult for many to answer.

    I repeat, if someone has no money and is sick will you treat him or her (from your taxes) even though you know he spent his money on a BMW instead of insurance or will you let him die because he was exercising his constitutional rights to not be responsible for himself?

    Elind (9e06ea)

  39. I see already that the simple question I asked is difficult for many to answer.

    Your simple question a ridiculous red herring. So no. Do you have any reality-based questions?

    carlitos (a3d259)

  40. No, elind we won’t let them die, but the Beemer and everything else he owns should be forfeited immediately. Just like we will give him an attorney when he is charge with a crime. And bankruptcy should not be an option.

    reff (7206a4)

  41. Carlitos, I see that you see ridiculous red herrings and no realities, but unfortunately my question remains the same in my reality. If you join it in the future, please feel free to answer.

    Elind (9e06ea)

  42. Look Scott, after only one day before at this site, I am already used to the expletives (coyly hidden with asterixes for reasons nobody knows).

    It’s because using the whole F word gets a comment (from anyone) sent into Moderation Purgatory. That’s what “Comment moderation is enabled. Your comment may take some time to appear.” means.

    If you have an argument for the difference between relying on the fact that we, as Americans, won’t let anyone die regardless of insurance or money, versus the argument that those who could pay for insurance can spend it on something else if they wish and the rest of us can pick up the bill if necessary; then make your point!

    See, we already don’t let people die regardless of insurance or money. That is existing federal law.

    Will some people who have chosen to not get health insurance – and done so of their own free will – end up with huge bills? Yes.

    That is a consequence of freedom – the freedom to chose poorly.

    However, the idea that people will forever be ruined because of crushing debt because they took a trip to the ER forgets a few minor points.

    First, there is this thing called “Medical bankruptcy”. It exists specifically for cases where people end up with massive bills they can not pay.

    Second, with only middling amounts of effort, it is possible to get bills drastically cut.

    My sister several years ago ended up in the hospital with (lets see if I can remember this correctly) “non-specific pain”. Her entire body RADIATED pain. A good bit was focused on her abdomen, but if you touched her anywhere it cause obvious agony. When asked to rate her pain by a doctor after he got moved to a local hospital (she had been living in one of the Carolina’s, and the hospital here made #3). I was lucky enough to be there at the time, and after she very quickly said “10″, I followed the doctor out, because I could tell he didn’t believe her.

    I explained to him that my sister had the highest pain tolerance of anyone I had ever met. She played Rugby, and not once even complained of what had to be bruised ribs (the girl that hit her screwed up her neck). If my sister rated something at 7, it would be a 12 for normal people.

    Anyways, she spent in total something like 5 or 6 weeks in hospitals. Countless tests. Had her Gallbladder removed (we think that was a shot in the dark, because she stayed for at least a week after that). She had no job, no insurance, but they kept plugging away at the problem.

    She left with a bill that would make sane people consider eating a bullet. It was huge. We’re talking well over $100K.

    With some light guidance from my father, and a bunch of phone calls, she got over 85% of it written off. Gone. Completely. One of the hospitals in Carolina wrote off EVERYTHING. She didn’t owe them a DIME.

    When all was said and done, with the writing off of parts, grants for other parts (many places have foundations and such to help people who are financially f**ked), she ended up owing less than 10K. In fact, I think it was less than 5K

    Still a lot, but manageable. Something we could work with.

    So before you ignorantly start talking about how “it’s impossible to pay for your care”, educate yourself first.

    And like I said, there were several things that could have been done, but weren’t. Tort reform, changing the rules that make it so only employers can deduct insurance premiums (if you are self-insured or self-employed, you can’t do this, and that should be changed), opening up competition between health insurance providers between states (currently not allowed), and the removal of mandated coverages (I will NEVER have a need for ovarian cancer screenings, or pre-natal care).

    Those items alone would have made a difference, but instead the bill went and did things that actually cause costs to increase (CA announced a 50%+ rate hike because of the bill, just as one example).

    No one should WANT a waiver. If the law was not harmful, no one would NEED one. But there are 700+ so far, more certainly to come, and who knows how many have applied and been rejected.

    You f**king cocktard.

    Scott Jacobs (d027b8)

  43. Elind — So is your argument let ObamaCare stand or people will die in the streets? There are no other possible health care policy alternatives? Seriously? That is a real argument?

    daleyrocks (479a30)

  44. Well thank you reff, at least you address the question without childish insults. However it seems to me that you advocate criminalizing being sick without funds to pay for it (sorry, the Beemer was repossessed). That sounds a little bit harsher than what the President advocates. Which side are you on, just for clarification again?

    Elind (9e06ea)

  45. Elind – Pull my other finger. I want to fart in your general direction. You got no game, dude.

    daleyrocks (479a30)

  46. Elind, If you don’t like red herring, try false dilemma. The debate isn’t really “Obamacare vs. people dying in the streets,” but perhaps shilling for LGF prevents your seeing that.

    carlitos (a3d259)

  47. Scott

    please dial it down a notch. i am pretty sure patterico won’t appreciate this and he wants to keep things relatively civil.

    Which is not to say that elind isn’t provoking and generally not contributing to the conversation, but oh well…

    Aaron Worthing (73a7ea)

  48. Elind

    > I repeat,

    You repeat, in the sense that you changed the question.

    > if someone has no money and is sick will you treat him or her (from your taxes) even though you know he spent his money on a BMW instead of insurance or will you let him die because he was exercising his constitutional rights to not be responsible for himself?

    yeah. and then instead i would donate to a charity that would provide care to the truly needy. you know, voluntary charity, not coercion.

    Aaron Worthing (73a7ea)

  49. relatively civil

    This is my civility.

    Well, all the civility that a mindless turd like Elind is entitled to, at least. When the idiot tries to make an argument without a blatant Strawman, I’ll consider re-indexing my levels.

    Scott Jacobs (d027b8)

  50. if someone has no money and is sick will you treat him or her (from your taxes) even though you know he spent his money on a BMW instead of insurance or will you let him die because he was exercising his constitutional rights to not be responsible for himself

    How about we do what was already the law? Namely, treat them, and then bill them. Make them sell the Beemer. Just because you’re an idiot who makes bad choices doesn’t mean you get away without consequences.

    Scott Jacobs (d027b8)

  51. Scott, do you have tourettes, or is that how you make your arguments at home? F this f that F them F you? Have you any idea how you sound if you spoke this aloud?

    As to your story, I am sorry for anyone to go through what you describe, but if you think it is normal for a 100k bill to be discounted to 5k, you are wrong, and the rest of us picked up the difference in the subsidies the government pays to hospitals. The hospital probably dropped it because they knew they could not collect (they know stuff). This is socialism the American way (Shsshh, don’t tell anyone).

    Elind (9e06ea)

  52. Being able to have this argument may be an indication that dying on the streets is not that much of a problem.

    From an historical POV.

    Ag80 (e03e7a)

  53. Scott, I see you snuck in a quicky there. Hope your reindex goes well, as they say in the matrix.

    Elind (9e06ea)

  54. My last post says 8:46, but it’s 11:47 here, so I’m signing off for now. Happy reindexing to all.

    Elind (9e06ea)

  55. So basically Elind wishes to go on ignoring how things ACTUALLY worked, and go on thinking that people were just chucked out to the curb to die in piles.

    Scott Jacobs (d027b8)

  56. I repeat, if someone has no money and is sick will you treat him or her (from your taxes) even though you know he spent his money on a BMW instead of insurance or will you let him die because he was exercising his constitutional rights to not be responsible for himself?

    i have no problem with him going to the ER. at that point, thanks to his decision not to pay for healthcare, its probably advanced to the point where he’ll be dead soon. that’s his personal tragedy, not society’s.

    deepelemblues (a78b16)

  57. Scoot, I would be interested in the final diagnosis, if possible/appropriate. Porphyria?

    MD in Philly (3d3f72)

  58. No idea. Give me a sec, and I’ll call and ask.

    Scott Jacobs (d027b8)

  59. And only my sister and a couple of other relative get to call me “Scoot”. :)

    Scott Jacobs (d027b8)

  60. Elind is a delicate snowflake. It has never heard the “f” directed at itself. It only directs the “f” word at others.

    daleyrocks (479a30)

  61. Scott- sorry, that was a typo.

    MD in Philly (3d3f72)

  62. If useful idiots and Leftists like dnile didn’t utilyze faulty logic, they would have no logic at all.

    AD-RtR/OS! (0c4142)

  63. MD, I figured it was. Doesn’t mean I can’t poke fun. :)

    And sis seems to be asleep. I’ll tell find out tomorrow.

    Scott Jacobs (d027b8)

  64. And like I said, there were several things that could have been done, but weren’t. Tort reform, changing the rules that make it so only employers can deduct insurance premiums (if you are self-insured or self-employed, you can’t do this, and that should be changed), opening up competition between health insurance providers between states (currently not allowed), and the removal of mandated coverages (I will NEVER have a need for ovarian cancer screenings, or pre-natal care).

    In what states is coverage for certain conditions mandated?

    So we re institute slavery for Doctors and health care workers?

    We could simply draft them into the military. Tell those doctors that they can expect a stay in Leavenworth if they do not provide health care without charge.

    Michael Ejercito (64388b)

  65. Michael – coverage for MANY things is mandated in pretty much every state. Just google “[insert state here] insurance mandates”.

    For example, here is what Illinois requires.

    Scott Jacobs (d027b8)

  66. Elind being sick is not a criminal offense but not paying for services you ask for is, and that is the rub. You can choose not to obtain insurance but when you do that you should assume the responsibility for your costs.

    Can you justify legally and/or morally why that should not be the case?

    reff (7206a4)

  67. I do appreciate what appears to have been a pot-shot at President Obama.

    Dude is supposed to be a Constitutional Scholar. Why not quote him?

    M. Simon (a498fa)

  68. Michael, the draft is slavery. And if it’s for more than two or three years, tops, the courts will have no choice but to rule it so. In addition, drafting doctors and nobody else is a violation of equal protection.

    Milhouse (ea66e3)

  69. Michael, the draft is slavery. And if it’s for more than two or three years, tops, the courts will have no choice but to rule it so. In addition, drafting doctors and nobody else is a violation of equal protection.

    A classification based upon a status as a doctor is subject to rational basis scrutiny, as it is not a suspect class, and drafting physicians into the military can easily pass rational basis review.

    Michael – coverage for MANY things is mandated in pretty much every state. Just google “[insert state here] insurance mandates”.

    Has anyone figured out that mandates would prevent people with pre-existing conditions from getting insurance coverage for treatment not related to the condition.

    Also, everyone is born dying. Why does life insurance even exist, since everyone has a pre-existing condition of eventual death?

    Michael Ejercito (64388b)

  70. Michael, not only does it block possible coverage, it adds to the cost of premiums – that coverage isn’t added for free you know.

    Also, it forces companies like MET Life to have a HUGE staff – people who are familiar with Illinois’s mandates, other people for Florida, others for California, and on and on. That too adds to the cost (gotta make payroll somehow, doncha know).

    Scott Jacobs (d027b8)

  71. Regarding whether the healthcare law originated in the House: the Senate gutted a bill from the House on another subject(“Service Members Home Ownership Tax Act of 2009″), and amended the bill to be the Senate’s healthcare bill. The Senate passed that, then because the House didn’t want to risk another pass through the Senate (because of the new Senator from Mass.), the House passed the Senate bill as is. I contend that this does not qualify as a bill originating in the House, because the original bill from the House had nothing to do with the final version of the bill.

    Ken in Camarillo (645bed)

  72. Elind, your argument was already addressed by me.

    SPQR (26be8b)

  73. That was not really an argument, SPQR. You are giving elind, the LGF sycophant, waaaaaaaaaaaay too much credit.

    JD (4b0f2e)

  74. Aaron:

    Excellent analysis. Thanks!

    Arch (24f4f2)

  75. The mandate is more than just a mandate – it forces everyone to buy a product that is more than they need. To take the auto insurance example (which is only to buy liability insurance) – You are being required to buy comprehensive coverage for a new $30,000 car with a very low deductible even though you drive a 10-12 year old car worth $1,000.

    joe (6120a4)

  76. Carlitos, I see that you see ridiculous red herrings and no realities, but unfortunately my question remains the same in my reality.

    What, because you say so? You’re an LGF lizztard, remember?

    Darth Venomous (c8614a)

  77. Also, everyone is born dying. Why does life insurance even exist, since everyone has a pre-existing condition of eventual death?

    That’s a nice bit of sophistry there, Michael.

    The reason life insurance exists is that, while everyone eventually dies, everyone lives a different amount of time. The premium for a life insurance policy is based on the amount of final payout and the probability of a person dying in the next year. In other words, it’s based on the likelihood of the policy paying out benefits in the next year. You’ll note that as you get older, your life insurance premiums go up, because each year on this planet increases the likelihood that you will die in the next year.

    Pre-existing conditions for medical coverage are a different matter. Someone with a pre-exisiting medical condition is highly likely to need benefits paid out in the next year, and those benefits would far outstrip the premiums.

    Now, if you are proposing that medical insurance companies cover pre-existing medical conditions, then how do you propose the benefits — which have a high likelihood of being paid out — be paid for? The obvious way is to increase the premium of those with the condition. Either that, or raise the premiums of everyone in the plan. But the money has to come from somewhere.

    Some chump (4c6c0c)

  78. BTW, I should add that beyond a certain age, you can’t get life insurance at all.

    Some chump (4c6c0c)

  79. Michael, not only does it block possible coverage, it adds to the cost of premiums – that coverage isn’t added for free you know.

    Also, it forces companies like MET Life to have a HUGE staff – people who are familiar with Illinois’s mandates, other people for Florida, others for California, and on and on. That too adds to the cost (gotta make payroll somehow, doncha know).

    And yet state legislators do not know this…or maybe they do.

    Pre-existing conditions for medical coverage are a different matter. Someone with a pre-exisiting medical condition is highly likely to need benefits paid out in the next year, and those benefits would far outstrip the premiums.

    They are highly likely, but not always guaranteed to require treatment in a particular coverage period.

    A person with diabetes is sure to require insulin treatment within the next coverage period, so it makes no sense to insure for insulin treatment, since it is predictable.

    On the other hand, a person with a history of heart attacks would not necessarily get a heart attack in the next coverage period, so insuring against a heart attack makes sense as long as the premium is high enough.

    To analogize with auto insurance, an auto insurance company will be willing to insure even persons living in Los Angeles and who have a history of drunk driving from collision damage (assuming a high enough premium), because one can not predict exactly when the next collision will happen, but will not insure anyone, even someone with a perfect driving record living in a small town in the middle of nowhere, from filling up the gas tank (because filling up the gas tank is predictable).

    The obvious way is to increase the premium of those with the condition.

    Absolutely.

    Michael Ejercito (64388b)

  80. michael

    a better analogy in the auto insurance thing is this.

    suppose you get into an accident.

    then you call up Allstate and say, “hey, i’d like to buy some coverage for the accident i just had.”

    Aaron Worthing (e7d72e)

  81. They are highly likely, but not always guaranteed to require treatment in a particular coverage period.

    Right, but the likelihood of requiring treatment drives the cost of the premiums. Did you not get that from what I wrote?

    The point of insurance is statistics. While one person with a pre-existing condition may not need treatment in the next year, a bunch of people with that condition will use about $X per year on treatment. That $X must come from somewhere.

    Did you also not understand that life insurance isn’t available beyond a certain age because the probability of benefits being paid exceeds the value of the premiums charged?

    To analogize with auto insurance, an auto insurance company will be willing to insure even persons living in Los Angeles and who have a history of drunk driving from collision damage (assuming a high enough premium), because one can not predict exactly when the next collision will happen

    First, some auto insurance companies won’t insure someone with multiple drunk driving arrests/convictions. Those that do charge a huge amount in premiums, because the risk is so high.

    Some chump (4c6c0c)

  82. If you must use the auto insurance analogy, it would not require you to carry liability coverage, but would require comprehensive and collision coverage. It would also have to cover gas, oil changes, routine maintenance, tires, windshield wipe, mechanical issues, etc …

    JD (822109)

  83. Did you also not understand that life insurance isn’t available beyond a certain age because the probability of benefits being paid exceeds the value of the premiums charged?

    That depends on the value of the premiums being charged.

    Given a high enough premium…
    That $X must come from somewhere.

    It comes from the premium.

    Those that do charge a huge amount in premiums, because the risk is so high.

    As anyone with a drunk driving conviction can attest.

    Michael Ejercito (64388b)

  84. Part of the problem is that health care “insurance” is no longer “insurance”. Its prepaid health care. All notion of insurable risk has been long destroyed.

    SPQR (26be8b)

  85. Part of the problem is that health care “insurance” is no longer “insurance”. Its prepaid health care. All notion of insurable risk has been long destroyed.

    So if the same happens to auto, life, and fire insurance, it will have the same problems?

    Michael Ejercito (64388b)

  86. The point is, if these people don’t get insurance, they crowd into emergency rooms that the state pays for. That means YOU PAY FOR THEM WITH YOUR TAXES! Some billionair­e WalMart guy is getting richer by dumping their employees health care, and YOU AND I GET THE BILL.

    Idi Amin (20739a)

  87. Ugandan, Obamacare encourages employers to dump employees because the penalty for doing so is cheaper than insurance.

    SPQR (26be8b)

  88. On the one hand they claim that forcing people to buy health insurance is unconstitutional but on the other hand they want to deny them the same health insurance just because of a pre-existing condition.

    Elli Davis (af7dc7)

  89. On the one hand they claim that forcing people to buy health insurance is unconstitutional but on the other hand they want to deny them the same health insurance just because of a pre-existing condition.

    Yes, it seems so unfair that people are denied insurance due to pre-existing conditions. I mean, who cares if someone has a string of pre-existing drunk driving convictions? Auto insurance companies ought to offer a policy anyway.

    Michael Ejercito (64388b)

  90. And fire insurance companies should be forced to insure houses even after they’ve caught fire.

    Milhouse (d84b40)

  91. Edi and Elli eat boogers.

    JD (d4bbf1)

  92. “Some billionair­e WalMart guy is getting richer by dumping their employees health care, and YOU AND I GET THE BILL.”

    They should work for the government so the government would pay the bill instead of you and me!

    daleyrocks (479a30)

  93. Also, my biceps, shoulders, and my pectorals are hurting now, and will be killing me tomorrow…

    Yeah, a shame that the bill made that a perfectly reasonable reaction.

    I mean, it’s too bad no one read it and thought about likely consequences of what they were passing.

    Perhaps next time, they could try and pay attention to what they were doing. Maybe even read the bill before they vote on it?

    Scott Jacobs (d027b8)

  94. And fire insurance companies should be forced to insure houses even after they’ve caught fire.

    So true.

    Michael Ejercito (64388b)


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