Patterico's Pontifications

3/28/2012

ObamaCare Second Day Arguments: Can Congress Make Citizens Buy Something?

Filed under: General — Patterico @ 7:39 am

Once again, it seems to come down to Anthony Kennedy. Which doesn’t inspire a lot of confidence, but which is better than leaving it up to a fifth liberal. At least this way we have a chance. And as you’ll see if you keep reading, it’s a real chance.

The constitutional problem with the mandate is simple: the federal government is forcing people to buy something in order to regulate a market. The government’s position is that the uninsured are already “in” the market for health insurance, because of the possibility that an unexpected illness will put them there. Many of the conservative justices seemed to disagree, accepting the opponents’ position that Congress would be forcing individuals to enter commerce. This is, as Justice Kennedy seemed to recognize, an unprecedented move that would change the relationship of the individual to the federal government:

Three of the four other conservatives (Thomas nearly always remains silent) peppered the government’s lawyer with hypotheticals and demands for some principled way of limiting the principle that government could force a citizen to buy something. The government lawyer sort of choked and sputtered and paused his way through the opening part of the argument in responding to examples like these.

For example, Justice Scalia asked: can Congress force people to buy certain foods? Everybody has to buy food, after all, so there is a market for food to regulate. Does that mean so you can make people buy broccoli? If the idea is that we are forcing people to purchase insurance to make it cheaper for others, can Congress make people buy cars based on the principle that a car maker that can’t sell enough cars will have to raise prices, causing those who do buy cars to spend more?

Chief Justice Roberts asked: well, there’s a market in emergency services, so can we force people to buy cell phones to allow everyone to call 911 in an emergency? This way the government regulates that market and makes sure the response will be quick.

Justice Alito asked: isn’t there a market for burial services? When the government lawyer agrees, Alito asked: wouldn’t this be like forcing young people to buy their own burial services, because otherwise they will be forcing their expenses on someone else?

Justice Breyer watched this parade of horribles shambling by and pronounced it a beauty pageant. What’s wrong with any of that? he wondered. What’s wrong with Congress forcing people to buy burial services, if Congress guarantees uniform burial for anyone? What’s wrong with Congress forcing them to buy cell phones, if Congress is indeed regualating the market? What’s the big deal? Why, he said, Congress has created commerce out of nothing before — didn’t they create a central bank in McCullough v. Maryland? (Solicitor Paul Clement smartly pointed out that that was not a Commerce Clause case.)

But the conservatives were clearly concerned with the possible far-reaching consequences of upholding the mandate, The obvious point of all these hypotheticals seemed to be: Once we force citizens to buy something as a regulation on the market, how do we prevent Congress from using the same logic to make us buy something else? Once we let Congress start down this road, where does it end?

The lawyer kept responding, essentially, that this is a unique situation. But lawyers can always find a way to “distinguish” one situation from another. Sure, the typical lawyer arguing a car accident case might say, the plaintiffs in the case just like mine lost, but they were wearing blue shirts! My client was wearing a yellow shirt!

Sure, you can come up with ways that the market for health insurance is supposedly different. But do those points of difference provide a principled basis for distinguishing this mandate from other situations where Congress could order citizens to buy something?

And that is where Justice Kennedy will be making his decision.

I’ll make a couple of final points here.

First, nobody bags on Kennedy more than I do. I have less respect for him than anyone up there. He is a pompous self-important windbag. I can’t stand him.

But if I could remove him and replace him with a fifth Justice like Breyer, I wouldn’t. I’ll take my chances with a Kennedy. Because we might get what we want with Kennedy. We will never get what we want with Breyer. It’s a little like settling for Romney vs. accepting four more years of Obama. Sure, Romney’s a squish. But at least we have a chance.

And this is important stuff. As Kennedy notes, it does fundamentally change the relationship of the individual to the federal government if this mandate survives. If they sanction this, all bets are off. Congress will be able to do almost anything in the name of commerce.

There is also an excellent point that, because of our system of enumerated powers, this might be something the states could do — but it is not something that the federal government could do. (Second look at Romneycare, at least constitutionally?) Justice Scalia makes this point well here:

Finally, I want to also note that even if we beat this, Congress could come up with other ways to do the same thing. Even good-guy lawyer Paul Clement agreed that it would be tougher to oppose Congress’s actions if Congress simply said: OK, we’re taxing everyone. But we can make exemptions, right? So we’re exempting everyone with health insurance.

Clement didn’t accept that this would be constitutional. But it would be tougher, legally, to oppose.

Finally, I will just say that yesterday’s arguments were as fascinating as the first day’s were deadly dull. It’s an issue every citizen should be acquainted with, and you’ll learn more about our system of enumerated powers. Hopefully the clips above whetted your appetite to listen to or read the whole thing. You can do either by following this link.

Today’s arguments: severability. What happens if the Justices kill the mandate? Does it kill the whole law, or just that provision? This is likely to be drier stuff, but it’s important. We’ll come back to it, hopefully tomorrow.

142 Responses to “ObamaCare Second Day Arguments: Can Congress Make Citizens Buy Something?”

  1. I want this comment thread to be about the argument, but I can’t resist tossing this provocative thought out.

    Squish Republican president gave us Thomas. His vote is sewed up.

    Strong conservative president gave us Kennedy.

    Clinton and Obama would never ever ever give us anyone who would consider voting against the mandate.

    I keep making this point over and over: this stuff matters — and solid conservatives don’t necessarily mean great judges, while weak ones don’t necessarily mean bad ones. But Democrats mean bad judges, every time in modern political history starting in the 1970s.

    This stuff matters.

    Patterico (feda6b)

  2. This Health Care Mandate is wearing a red shirt.

    dfbaskwill (ca54bb)

  3. In reference to Ginsburg, Breyer, Kagan, Sotomayer and the former justice Stevens – There are legitimate policy arguments as to whether there should be an individual right to own a gun, there are legitimate policy arguments as to whether corporations should have free speech rights. Stevens dissent in both heller and CU demonstrated that policy trumps the plain meaning of the constitution.

    The apparent acceptance of the mandate by G,B,S& K without any concerns about the commerce clause shows contempt for the constitution.

    Joe_dallas (2d12c3)

  4. Isn’t the Commerce Clause supposed to be about InterState Commerce, meaning Commerce between the states? Do any of the 57 😉 states allow one to purchase health insurance (not health care) across state lines? If not, how does the Commerce Clause apply?

    I wish Justice Thomas would ask more questions, but regardless, his opinions are pretty spot on.

    mer (929aee)

  5. I did not read in any of the accounts of yesterday’s hearings concerning the inevitability of an individual consuming health care at some point the possibility of the individual lacking insurance actually self-paying for care. Not all individuals who lack health insurance are a burden to society as is commonly portrayed in the government’s argument.

    daleyrocks (bf33e9)

  6. Should’ve just treated this like car insurance…

    You want to drive, you have to have car insurance. It’s not unconstitutional because you don’t have to drive.

    You want healthcare from a hospital, you have to have health insurance. It’s not unconstitutional because you don’t have to have healthcare from a hospital. Ask the Christian Scientists about it.

    Leviticus (624ba1)

  7. Isn’t the “privilege” of driving a car left to the states, as is the requirement to have car insurance? If so you’re arguing that the Federal Government has no business in health care/health insurance. Oh, and to extend your car == health care, all you should have to do is be able to pay for. Warren Buffett and Bill Gates could self insure, so why force them to buy insurance just to make it cheaper for you? Isn’t auto insurance also protecting the person you hit more than it is you?

    mer (929aee)

  8. Leviticus:

    You are compelled by law to have insurance if your drive, because you are driving on government built and owned roads, by and large.
    Most hospitals are private enterprises, built with private money. The government has no business dictating that users of private hospitals must have insurance.
    They could, logically, require users of government hospitals to have insurance. That would of course eliminate most of their patients, since those hospitals are usually utilized by the poor.

    orcadrvr (5daf3f)

  9. “Isn’t auto insurance also protecting the person you hit more than it is you?”

    – mer

    It’s protecting society from the externalities of poor driving.

    Leviticus (624ba1)

  10. “You are compelled by law to have insurance if your drive, because you are driving on government built and owned roads, by and large.”

    – orcadrvr

    You are compelled to have car insurance if you drive because it’s not fair for you to impose massive costs on other drivers through your terrible driving.

    Leviticus (624ba1)

  11. To recast the case in a way liberals will understand:

    Suppose that a different Congress decided that law & order was a serious concern and that simply spending endless dollars on police wouldn’t be the best way to solve the problem. Instead, they decided to MAKE every law-abiding citizen buy, maintain, train with and carry a personal defense weapon, wither a handgun, or a shotgun (for the home).

    After all, they say, everyone is in the personal defense marketplace, even if they just rely on the police for their protection. But that such “freeloading” on public security services is costly to government and they should be made to shoulder at least some of the costs, either by providing one’s own defense, or by paying an annual penalty. Hence the Citizen’s Responsibility for Armed Protection (CRAP) law.

    And of course, in the details we find that only certain weapons are acceptable, and that gun manufacturers are lobbying madly to have their equipment on the list, gun prices are skyrocketing, etc.

    If you’re against it, you are for letting poor defenseless grandmothers be raped by rampaging hordes.

    It’s that simple™

    Kevin M (bf8ad7)

  12. Some states, such as NH do not compel anyone by law to carry insurance in order to drive a car. If you buy a car in NH and finance it, the bank may require you to carry insurance as part of the contractual requirements for the financing, but once the loan is paid off/contract satisfied, one is not under any obligation to continue to carry auto insurance.

    I’m not saying it’s a good idea to not have it, just that in NH there is no law compelling one to have auto insurance in order to drive a car. Other states (Texas, Michigan?) are similar to NH. If my licensing state does not require me to carry auto insurance by law, that does not prohibit me from driving in other states.

    mer (929aee)

  13. I did not read in any of the accounts of yesterday’s hearings concerning the inevitability of an individual consuming health care at some point the possibility of the individual lacking insurance actually self-paying for care. Not all individuals who lack health insurance are a burden to society as is commonly portrayed in the government’s argument.

    This came up several times. It was pointed out that only some uninsured would be unable to pay, so it wasn’t like there were 40 million freeloaders, just 40 million who did not have insurance for one reason or another. Both Clement and Carvin brought this up, and Carvin further noted that many of these uninusred, notably the young, would prefer to purchase catastrophic care (insuring against all the liberal’s list of horrors), but that the ACA prohibits such policies.

    Kevin M (bf8ad7)

  14. 1. And anointed’s numero uno, former CoS, gave us Souter, Kelo, et al.

    Mr. Den Beste has an enviably insightful post up at the Green Room on Jugear’s stratergery: Loose A-IA, lose Mandate, win severability. Kagan is going to be doing the arguing today with an assist from Breyer.

    Romney’s unfavorables have risen to his PR at 52%. A ham sammy would be able to beat the majors but for the mayo being spoiled.

    My money is on SOTUS following Vinson on severability. Congress took it out. They had their ‘reasons’, let’s respect their ‘judgement’.

    Kennedy has more than enough fodder with Liberty in striking down the mandate. First and Third issues can be handled by others.

    gary gulrud (1de2db)

  15. Car insurance isn’t germane — it is at the state level, and one can opt out by not driving. In the case of the ACA, it’s federal and (still) subject to Constitutional limits, and there is no way to opt out short of dying.

    Kevin M (bf8ad7)

  16. “This came up several times.”

    Kevin M – Thanks. I did not listen to the audio and the accounts I read did not highlight the self-pay argument, although the cat cover alternative was discussed.

    daleyrocks (bf33e9)

  17. 6. Willard’s argument.

    In contradistinction, people who don’t own cars don’t buy insurance which is mandated by the States to cover injury to others.

    In WI, one has the option of a $5000 bond in lieu of insurance.

    But the Feds have enumerated powers. Motoring at least is potentially interstate, insurance as regulated by Congress and the States not.

    gary gulrud (1de2db)

  18. I agree with Leviticus’ #6. The only reason the liberals have an opening to pass ObamaCare is because of the requirement that government-supported hospitals have to treat everyone, regardless of their ability to pay. I understand that requirement but one of its consequences is that people have a built-in safety net that makes it easier for them to avoid paying for health insurance and saving for health care costs.

    Take away that safety net and some of those 30-40 million uninsured people might make different decisions.

    DRJ (a83b8b)

  19. Gary is right about Kennedy — he strays from the Conservative path, but towards Liberty interests (see Casey, Lawrence, etc). And this is a bright-line Liberty case if there ever was one.

    Then again, Scalia voted for increasing federal power in Raitch, pursuing policy over originalism, so anything is possible.

    Kevin M (bf8ad7)

  20. When ObamaCare passed on a party-line vote and then only after significant backroom deals, like the Louisiana Purchase and the Cornhusker Kickback, Solicitor General Elena Kagan, chief Administration advocate for the legislation, sent out a congratulatory note celebrating the victory.

    Today, only 2 years later, that very same Elana Kagan sits on the Supreme Court in judgment of the very legislation she was pivotal in advancing.

    That is so fundamentally wrong that it renders the Court itself a corrupted institution.

    ropelight (5ab477)

  21. DRJ,

    This isn’t unique. Fire and police (and nearly any government service) must do the same. See my #11. Setting this precedent opens a MUCH larger door than the proponents let on.

    Kevin M (bf8ad7)

  22. daleyrocks:

    I did not read in any of the accounts of yesterday’s hearings concerning the inevitability of an individual consuming health care at some point the possibility of the individual lacking insurance actually self-paying for care.

    I didn’t listen to the argument live but Alito’s questioning also addressed a related issue:

    Alito called the insurance requirement and penalties a “huge subsidy” from young, healthy people who don’t want coverage to those who need a lot of health care. He cited an estimate that people targeted by the mandate consume an average of $854 per year in health-care services, comparing it with the estimated $5,800 annual price for a individual insurance policy in 2016.

    I’m not sure when Ginsburg made this observation but it touches on the same topic, only in reverse:

    On several occasions, the court’s Democratic appointees jumped in to bolster Verrilli’s case. Justice Ruth Bader Ginsburg on multiple occasions said Congress was trying to address the problem of uninsured people shifting their health- care costs onto others.

    “The problem is that they are making the rest of us pay for it,” she said.

    DRJ (a83b8b)

  23. “Isn’t auto insurance also protecting the person you hit more than it is you?”

    – mer

    It’s protecting society from the externalities of poor driving.

    Comment by Leviticus — 3/28/2012 @ 8:52 am

    Wrong. 1st party insurance is not required. Only 3rd party, and minimum limits.

    JD (e5c06b)

  24. Ropelight,

    The history of conflicted justices is rife with this kind of thing. Some fairly recent justices (e.g. Douglas, Fortas) used to discuss cases with the President, for example. Justice Ginsberg at one point attended a NOW fundraiser at which one of the beneficiaries had a case before the Court.

    Kevin M (bf8ad7)

  25. Kevin M,

    I understand how public services work. What I’m saying, and what I think Leviticus is saying, is that hospital/emergency care doesn’t have to be a public service.

    DRJ (a83b8b)

  26. One telling point from the oral argument that may have escaped notices is that there is NO CHANCE that the taxing power will be used to justify this. Justice Ginsberg loudly called bull***t on that idea, so it is hard to see a majority there.

    Kevin M (bf8ad7)

  27. 3. I’ve decided to go with a Glock compact and night sights. The vets keep pushing revolvers for rube moi but two clips distributed separately from an ultra reliable 3 position trigger safety just dismisses their issue in the rube’s favor.

    gary gulrud (1de2db)

  28. What I’m saying, and what I think Leviticus is saying, is that hospital/emergency care doesn’t have to be a public service.

    DRJ,

    But if this precedent is set, what would stop any Congress from passing a mandate whenever a governmental cost is involved? The flip side is that the service doesn’t have to be private, either.

    Kevin M (bf8ad7)

  29. Enter Health savings accounts. These accounts allow young, normally healthy people to pay cash for their services and accumulate savings to cover the larger, unexpected health problems that may occur.

    Rather than buying expensive full coverage insurance, you can open one of these, buy a catastrophic policy and put the extra money you save into this account. Over the course of a few healthy years, you could accumulate quite a healthy nest egg. The money is yours and if you leave it in the account, or use it for qualified health care needs, then you don’t pay taxes on it. If you use it for any other purpose, then you pay normal income taxes on what you take out of the account.

    These become illegal under the ACA.

    Jay H Curtis (804124)

  30. Nevermind. Sorry, Leviticus. The comparison to auto I durance is so fatuous that it makes me go Beetlejuice every time it comes up.

    JD (e5c06b)

  31. More to the point, though, with state driver’s responsibility laws, is that they are STATE laws. Many (but not all) states would be quite able to make this kind of medical mandate under their constitutions. But the Federal government (still) lacks plenary power — unless this law is allowed, of course.

    Kevin M (bf8ad7)

  32. 25. GLWT 57 times.

    gary gulrud (1de2db)

  33. To anyone who would defend this law: What bright line test would you suggest to limit the extent of this expansion of federal power? See my #11 for an example of something that ought to be still excluded. There are a lot of markets that “we are all in.”

    Kevin M (bf8ad7)

  34. Auto insurance is expensive, and even though it is required there are a lot of uninsured drivers out there.
    Everybody benefits from safe drivers, and everybody, regardless of whether or not they have a car, benefits from the driving of automobiles. If you buy food, or need to be transported to the hospital, you have participated in the act of using an insured vehicle.
    Therefore we should all be mandated to carry auto insurance to keep the cost down. Furthermore, the insurance companies should not be allowed to charge more based on claim history, except in the case of tobacco use.

    MayBee (081489)

  35. Kevin M,

    Perhaps you have misunderstood me. First, I don’t believe ObamaCare is constitutional. Second, I understand the auto insurance requirement is allowed because it is a state law issue and it only applies to people who choose to drive, and thus it’s different than ObamaCare’s universal mandate.

    Maybe I misunderstood Leviticus’ comment but what I’m saying (and what I thought he was saying) is that one big reason we have an uninsured problem is because hospital/emergency costs are out of control. One reason those costs have skyrocketed is because of the requirement that government-funded hospitals have to provide health care regardless of a patient’s ability to pay.

    I’m not saying I want to change that rule but I would like to reconsider illegal immigrants’ care (for one example) and to recognize the role this unfunded mandate plays in our health care problems.

    DRJ (a83b8b)

  36. #27

    Springfield XD makes a nice, comfortable and easy to be accurate with alternative. But only for home defense here in San Diego County, CA.

    The local Sheriff only believes CCW’s should be issued to people who he knows personally, politicians and his financial supporters.

    You might remember him. William D. Gore of Ruby Ridge fame. He is on record as stating that California is a “shall not issue” state in regards to CCW’s.

    #11

    This argument actually makes more sense than the liberal argument for mandated health insurance. At least the Federal government has a constitutional interest in defense and an armed populous would be one hell of an argument against invasion where as there is no constitutionally valid argument for the feds to be involved in determining how you pay for your health care.

    Jay H Curtis (804124)

  37. “Alito called the insurance requirement and penalties a “huge subsidy” from young, healthy people who don’t want coverage to those who need a lot of health care.”

    DRJ – Absolutely correct. Without the addition of healthy people to the risk pool, rates would continue rising for the remaining participants with quasi-community rating schemes.

    daleyrocks (bf33e9)

  38. _______________________________________________

    The Washington DC area has been the least negatively impacted during the great recession of the past few years. Employment there has remained quite high, before and after 2008, due largely to the intertwining of tax-supported government activities and everything and everyone that gloms off of it (including the effects of crony capitalism).

    Why should I want to fill the feeding trough even higher in a part of this country I don’t live in, by, for one, making the offices of the IRS a much bigger entity, with more new employees required to supervise Obamacare’s rules, fees and penalties?

    As the saying goes, “f that.”

    Mark (31bbb6)

  39. Auto insurance is not “required” except as dictated by state law. Not all states say you have to carry insurance if you own a car. Again, auto insurance is a state, not a Federal requirement.

    mer (929aee)

  40. Kevin M, @9:21am

    Discussions with Presidents and participation in a NOW fundraiser may indeed be questionable activities for a member of the court. But none of those activities, or even similar and more egregious activities, even begin to rise to level of Kagan’s malfeasance.

    Kagan should no more be sitting in judgment of ObamaCare than the get-away driver should be on the bank robber’s jury.

    ropelight (5ab477)

  41. “Furthermore, the insurance companies should not be allowed to charge more based on claim history, except in the case of tobacco use.”

    Maybee – Do you believe insurance companies should be forced to accept all comers even if they can’t discriminate on price, with the exception you noted? Essentially, it’s OK to force insurance companies to eat anticipated losses on policies?

    daleyrocks (bf33e9)

  42. In other words, Kevin M., the health care market is already skewed because of existing mandates that require hospitals to provide care. As a result, it makes it easier for ObamaCare supporters like this to argue that because health care has become a highly regulated market, it requires a special mandate to fix it.

    I don’t agree that because the government has regulated health care into a fiscal box, it should be able to take it over as a government monopoly. But I do want us to recognize why this happened in the first place … because recognizing how we got here may be the start of fixing it.

    DRJ (a83b8b)

  43. OK, we’re taxing everyone. But we can make exemptions, right? So we’re exempting everyone with health insurance.

    Clement didn’t accept that this would be constitutional. But it would be tougher, legally, to oppose.

    Patterico,

    Clement was mostly talking about a flat penalty imposed as a tax on each person. The Constitution prohibits “head” taxes and couching one in different terms doesn’t solve the problem. If it was “1% of income”, though, it would be OK.

    He also used the example of an excise tax for NOT buying something being an impermissible head tax, and (I couldn’t quite tell from his argument) an example that had come up in the Founder’s time.

    Kevin M (bf8ad7)

  44. DRJ, I do understand that — I listened to, and understood, all two hours of the debate yesterday. My point is that the scope of the expansion of federal power isn’t as limited as the proponents make out. Lots of things are highly regulated. Lots of economic activity is subsidized (or performed) by government.

    If this goes through, why couldn’t the federal government do what they will to all public and private schools? Banks? Oil companies? Oh, you could limit it to “means of paying for” [blank], but that’s just playing Jeopardy.

    Kevin M (bf8ad7)

  45. daley- no, I don’t think that. But that’s what Obamacare requires of health insurers.
    People who support Obamacare frequently point to auto insurance mandates, and I’m trying to point out how the Obamacare logic would look when applied to auto insurance.

    MayBee (081489)

  46. “In other words, Kevin M., the health care market is already skewed because of existing mandates that require hospitals to provide care.”

    DRJ – It’s the old, because the federal intervention already royally screwed it up, we need more federal intervention to fix it argument, instead of just getting the government out of the way.

    daleyrocks (bf33e9)

  47. Kevin M #44,

    I am not disagreeing with your point that this is an unconstitutional expansion of government power, and I’m not sure why you think I disagree.

    DRJ (a83b8b)

  48. daleyrocks #46,

    You understand what I’m saying. Thanks!

    DRJ (a83b8b)

  49. “People who support Obamacare frequently point to auto insurance mandates, and I’m trying to point out how the Obamacare logic would look when applied to auto insurance.”

    MayBee – Sorry. I thought at the end of your point you were talking about health care. In auto, a lot of states (I’m not sure if every one does) have high risk pools that every insurer writing auto insurance in a state is required to participate in as a privilege of doing business in that state. There are also nonstandard insurers who specialize in insuring only high risk drivers.

    daleyrocks (bf33e9)

  50. DRJ,

    The reasons that health care prices (at least rack rates) have gotten more expensive are numerous. Not only do some people not have to pay, but others are entitled to care at reduced rates BY LAW(e.g. Medicare), or by contract (insurance). The rack rates are sky high to make up for the discounts, and also to provide a high baseline to discount from. Which makes the uninsured patient’s costs higher than it need be.

    There are lots of ways to reform this system that don’t involve mandates. One could go back to the old undiscounted “normal & customary” model, for example, which also makes the idea of catastrophic policies more meaningful (a cost ceiling without a discount scheme is currently uninteresting to most insurers). Or vouchers. Or savings accounts. Or direct subsidy.

    I don’t see how Congresses powers grow just because Congress has screwed something up.

    Kevin M (bf8ad7)

  51. DRJ, sorry. Typing faster than reading.

    Kevin M (bf8ad7)

  52. “You understand what I’m saying. Thanks!”

    DRJ – I usually do!

    daleyrocks (bf33e9)

  53. I am not happy. Whichever way this goes it should not be a 5/4 vote. One man should not be the deciding factor in rather the Constitution is scrapped and the Divine Right of Kings is invested in Congress and the President. If we are to give up the idea of limited government and individual liberty then it should be by overwhelming majority or at least by bloody revolution. Not out with a whimper.

    Too much blood was sacrificed for the idea that our rights were birthrights, not privileges granted by the all powerful state if we were good subjects. However they decide I feel sick that it has come to this. If the whole idea of rule by consent of the governed is a 5/4 partisan vote than we don’t have long at all.

    This isn’t the first abuse of the commerce clause but if this flies I don’t see any natural step before the Constitution is sucked down into a black hole of commerce clause usurpation of power by Congress.

    Machinist (b6f7da)

  54. DRJ, I am not arguing that you support Obamacare, I’m arguing that you insufficiently fear the precedent being set.

    Kevin M (bf8ad7)

  55. MayBee – Sorry. I thought at the end of your point you were talking about health care. In auto, a lot of states (I’m not sure if every one does) have high risk pools that every insurer writing auto insurance in a state is required to participate in as a privilege of doing business in that state. There are also nonstandard insurers who specialize in insuring only high risk drivers.

    Yes, but that isn’t what’s going to happen in Obamacare. And so if we want ObamaAutoCare, we have to make it so everybody pays the same premium. And that is everybody who may benefit from the act of driving, not just people who currently participate in driving.

    Do we want some man to be unable to drive to his job to feed his child simply because he previously rear-ended a school bus and can not afford high risk insurance? We all benefit when people can work and children are fed!

    MayBee (081489)

  56. Help me understand how I’m doing that, Kevin. What did I say that makes you believe I’m not sufficiently afraid of this?

    DRJ (a83b8b)

  57. “Yes, but that isn’t what’s going to happen in Obamacare.”

    MayBee – That’s one of the reasons the auto insurance analogy is BS, that plus auto insurance is regulated by the states.

    daleyrocks (bf33e9)

  58. DRJ, you seem to see the health care market as special. Maybe I’m misreading that and you’re just quoting the arguments. My fear is that anything government screws up will become equally special, and they screw up so very much.

    Kevin M (bf8ad7)

  59. “Do we want some man to be unable to drive to his job to feed his child simply because he previously rear-ended a school bus and can not afford high risk insurance? We all benefit when people can work and children are fed!”

    MayBee – Tough to answer that with limited info. If he is a drunk habitual offender, I think we all benefit from him being off the road for a while and he can arrange rides or public transportation to work. I’ve got a friend who hasn’t had a license since 1984 because he was afraid to go back to court to clean up a DUI. He’s used rides and public transportation to work, but will get his license back later this year.

    daleyrocks (bf33e9)

  60. Patterico: Even good-guy lawyer Paul Clement agreed that it would be tougher to oppose Congress’s actions if Congress simply said: OK, we’re taxing everyone. But we can make exemptions, right? So we’re exempting everyone with health insurance.

    — But Congress (a Democratic congress, that is) won’t institute it as a tax for the same reason they didn’t do it that way in the first place: it would undeniably be viewed as a tax increase on the middle class; something that the president has forsworn ever doing.

    Icy (25eae8)

  61. “Maybe I misunderstood Leviticus’ comment but what I’m saying (and what I thought he was saying) is that one big reason we have an uninsured problem is because hospital/emergency costs are out of control. One reason those costs have skyrocketed is because of the requirement that government-funded hospitals have to provide health care regardless of a patient’s ability to pay.”

    – DRJ

    Yeah, that’s basically what I was saying. If you want healthcare, you pay for it by purchasing insurance. No insurance, no healthcare – in a hospital, anyway. Self-help is always acceptable, but the requirement that hospitals treat everyone regardless of ability to pay allows people to externalize their costs and f*cks up the market. We don’t allow people to externalize their costs with (say) cars; we make them purchase car insurance.

    It wouldn’t take an individual mandate to get people to purchase health insurance if they knew they couldn’t get healthcare without it. Most people, anyway; and it’s would remain the holdouts prerogative to take his chances with all of life’s little contingencies.

    Alternatively, we could have a conversation about whether we wanted to subject healthcare to market principles. I’m actually kind of sick about this; that I’ve lapsed into this economic mode that glosses over the fact that some people just cannot afford health insurance. What should we do about them? Sacrifice them on the altar of market efficiency?

    What it boils down to for me is, we should have a single-payer system. But people are more afraid of an elected government than they are of a bunch of cutthroat racketeers in the insurance industry. Maybe that bespeaks just how pathetic our erstwhile “leaders” have become, and how corrupt our system is, that we entrust public policy to private corporations over our own elected officials – but maybe that (in turn) is a condemnation of who we’ve become, as a people.

    I dunno. I don’t know the ins-and-outs of healthcare regulation to know what the heck I’m talking about.

    Leviticus (870be5)

  62. Not all individuals who lack health insurance are a burden to society as is commonly portrayed in the government’s argument.
    Comment by daleyrocks — 3/28/2012 @ 8:42 am

    — How . . . DARE YOU violate the meme that everyone without insurance goes to the ER for basic care and never pays?

    Icy (25eae8)

  63. I don’t see why the government should control whether hospitals must care for those who can’t pay, especially to the extent where it’s abused for medications and minor illnesses.

    I think it’s just plain abhorrent to impose government control on who hospitals must not care for.

    some people just cannot afford health insurance.

    But they could afford catastrophic coverage if the government would get the hell out of the way of such a product.

    Why should a guy like me have anything more than that? I have google, I have access to over the counter medicine, I eat right and exercise, I’m a young man. I don’t need anything more than coverage for a catastrophe… something with a high deductible that I will probably never use.

    As I age, I can get something more appropriate for me. I can decide what risks I want to take financially.

    At least let the states deal with it.

    Dustin (330eed)

  64. “At least let the states deal with it.”

    – Dustin

    I’m fine with that. Also, it would help if we forced insurance companies to actually compete with one another across regions. That would help.

    Leviticus (870be5)

  65. “If you want healthcare, you pay for it by purchasing insurance. No insurance, no healthcare – in a hospital, anyway.”

    Leviticus – There may be reasons to want to private pay expenses incurred in a hospital even if somebody or a member of their family is covered by insurance.

    daleyrocks (bf33e9)

  66. Who the hell wants to be seventy anyway?

    Screw health insurance. By a motorcycle with that money.

    I’m joking. But this is a free country. If someone wants to smoke swisher sweets from their Aprilia and they can’t do that with a helmet on, that’s none of my damn business.

    Dustin (330eed)

  67. *buy

    Dustin (330eed)

  68. Daleyrocks – whatever, as long as you pay for the service.

    At least under a market-mentality, I say that.

    Leviticus (870be5)

  69. Yeah, daley and Icy. Also, some people actually pay for their healthcare services and prescriptions as needed (like they do for their gas, tires, wipers and batteries), but specifically choose to buy and carry “catastrophic” or high-deductible insurance policies that come into play only when there is an accident or serious illness to deal with which might be more than their finances could bear.

    elissa (189bdf)

  70. Also fine with that.

    Leviticus (870be5)

  71. What if they made medical debt a bit like student loan debt, and you can’t discharge it through bankruptcy? Then folks can either get catastrophic coverage or they can deal with the consequences of the risk they took.

    One thing not being discussed enough: it’s a good thing that health care is a lucrative science because that’s why we have new treatments (that cost a lot of money). Obamacare and single payer will interfere with this trend. And that means fewer expensive new treatments, but you never had to opt for those anyway.

    Dustin (330eed)

  72. Leviticus–I’m sure you know that what I described @ 11:23 would no longer be allowed under an Obamacare in full flower. At least without a penalty. Right?

    elissa (189bdf)

  73. Pravda endorses
    the Big Zer0 0bama
    settles it for me!

    Colonel Haiku (f4cb77)

  74. menacing Repubs
    first they came for my Hoodie®
    then 0bamaCare®

    Colonel Haiku (f4cb77)

  75. elissa – yeah, I realize that. I’m not down with an individual mandate at all. Not at all. Forcing anyone to interact with extortionists like insurance companies bothers me deeply.

    Leviticus (870be5)

  76. can you get to that?
    Can.You.Get. i wanna know
    i wanna know if

    Colonel Haiku (f4cb77)

  77. you can get to that?

    Colonel Haiku (f4cb77)

  78. Big Zer0 in shock!
    Administration plane-wreck
    too bad and so sad

    Colonel Haiku (f4cb77)

  79. “Opponents of Obamacare will be making a terrible blunder if they count on the Supreme Court to deliver the death blow to Obamacare. We need to work to elect this November a Congress that will repeal and replace the monstrosity and a president who will sign that legislation.”

    – Ed Whelan

    Colonel Haiku (f4cb77)

  80. “The Obama administration’s defense of Obamacare before the Supreme Court on Tuesday was reviewed as stumbling and bumbling by news reporters, foreshadowing the Big Government clumsiness and ineptitude a universal health care system would offer the public.”

    http://blogs.dailymail.com/donsurber/archives/53434

    Colonel Haiku (f4cb77)

  81. Comment by Leviticus — 3/28/2012 @ 8:42 am
    Should’ve just treated this like car insurance…
    — Because they both contain the word “insurance” and therefore are exactly the same. Right?

    You want to drive, you have to have car insurance. It’s not unconstitutional because you don’t have to drive.
    — There is a federal mandate that all drivers must have car insurance, is there? Oh, that’s right; there isn’t.

    You want healthcare from a hospital, you have to have health insurance. It’s not unconstitutional because you don’t have to have healthcare from a hospital. Ask the Christian Scientists about it.
    — Self-pay? Oh, I know, nobody ever actually does that; right?

    We don’t allow people to externalize their costs with (say) cars; we make them purchase car insurance.
    People are “made” to purchase liability insurance, because most auto accidents involve an innocent bystander (victim) and it is reasonable to insure that the responsible party pays for any and all physical damages that his/her reckless actions inflicted upon the innocent party. People are NOT required to purchase auto insurance to protect the shop that fixes the responsible party’s car from being stiffed on the bill!

    Self-help is always acceptable, but the requirement that hospitals treat everyone regardless of ability to pay allows people to externalize their costs and f*cks up the market.
    — Not to belabor the point, but there is NO requirement, either state or federal, that a repair shop must fix your accident-damaged car regardless of ability to pay. It is a FALSE analogy, sir.

    It wouldn’t take an individual mandate to get people to purchase health insurance if they knew they couldn’t get healthcare without it. Most people, anyway; and it’s would remain the holdouts prerogative to take his chances with all of life’s little contingencies.
    — There’s something more than just a little ironic in this statement from someone that (I presume) would not hesitate to invoke the “provide for the general” welfare clause in the preamble to the Constitution as justification for the federal government involving itself in this issue.

    What it boils down to for me is, we should have a single-payer system. But people are more afraid of an elected government than they are of a bunch of cutthroat racketeers in the insurance industry.
    — Business is evil, government is benevalent; is that it, comrade?

    Maybe that bespeaks just how pathetic our erstwhile “leaders” have become, and how corrupt our system is, that we entrust public policy to private corporations over our own elected officials
    — Uh, and the public policy that we have ‘entrusted’ to private corporations is WHAT?

    I dunno. I don’t know the ins-and-outs of healthcare regulation to know what the heck I’m talking about.
    — Enjoy your time in law school, young Leviticus. There is so much to be learned there.

    Icy (25eae8)

  82. Government is us. If government sucks, it’s because we suck.

    Leviticus (870be5)

  83. Also, it would help if we forced insurance companies to actually compete with one another across regions. That would help.
    Comment by Leviticus — 3/28/2012 @ 11:16 am

    — Either that OR single-payer; right? Gotta usurp or ignore states rights in order to make things better for us all, eh?

    Icy (25eae8)

  84. Government is us. If government sucks, it’s because we suck.
    Comment by Leviticus — 3/28/2012 @ 12:22 pm

    — The part of “we” that placed Obama, Pelosi & Reid into positions of power? They suck.

    Icy (25eae8)

  85. People aren’t “required” to purchase auto insurance at all, which was my whole point – people shouldn’t be required to purchase health insurance either. But in most states, people can’t (legally) drive a car without car insurance; from a market standpoint, people shouldn’t be able to get healthcare without health insurance, either, because there are analogous externalities (that just happen to be more less concentrated in the case of healthcare.

    I don’t see anything else in your comment worth addressing.

    Leviticus (870be5)

  86. Yeah, the Republican Party has nothing but gems.

    Leviticus (870be5)

  87. I heard Kennedy speak a long time ago, when I was an idealistic clueless appellate defender. I went in detesting him, came out with great respect for his intelligence and legal acumen. In the Heller case, he was the most pro Second Amendment in oral argument, talking about the pioneers needing to defend themselves while Scalia was talking about needing different guns for deer and birds and citing 16th century English about not carrying weapons “in the market place”.

    nk (dec503)

  88. I’m glad to hear that, nk. I hope he lives up to your respect with this decision. Commerce Clause abuse seems to be one of the most insidious trends, and I would love to see someone stop it.

    Dustin (330eed)

  89. people shouldn’t be able to get healthcare without health insurance, either,

    Eh?

    nk (dec503)

  90. without health insurance or payment of some other sort, I mean.

    Again, if we’re going to run our healthcare according to market principles.

    Leviticus (870be5)

  91. Could I tell you about the finest man I knew, a surgeon who also had a neighborhood office, and in front of my eyes reached into his pocket and gave an old lady cash to buy milk?

    nk (dec503)

  92. I don’t detest Kennedy. What I detest are his opinions. Incoherent, bloated wandering silly pieces that can’t be read for a coherent holding by anyone. Lawrence v. Texas is probably his worst example. You have to read Scalia’s dissent to get a clue what’s going on in the majority opinion.

    SPQR (26be8b)

  93. Sure.

    Leviticus (870be5)

  94. Sure to nk @ 12:41, that is.

    Leviticus (870be5)

  95. without health insurance or payment of some other sort,

    Yeah, that’s reasonable. Sounds a lot better than what I initially thought you had said. Sort of a final solution mandate.

    Dustin (330eed)

  96. If auto and health insurance was the same, it would require that your auto insurance pay for tire changes, gasoline, oil changes, and routine maintenance, and your rates would be oddles of times higher than what we pay now.

    JD (318f81)

  97. I think Leviticus’ analogy to auto insurance is helpful, but he’s not talking about the debunked mandate analogy. He’s talking about insurance as a choice people make to help protect themselves from a future liability. Buying automobile insurance is mandated in the states but it’s also something many people buy because it protects us in the event something bad happens.

    Similarly, I think Leviticus is trying to find ways to make more people want to buy health insurance. Some of them won’t do that if they know they essentially have free catastrophic health insurance via government-funded hospitals, because those hospitals are required to provide emergency care to paying and non-paying patients. Eliminating or limiting that benefit would probably motivate more people to buy health insurance.

    DRJ (a83b8b)

  98. “Government is us. If government sucks, it’s because we suck.”
    Comment by Leviticus — 3/28/2012 @ 12:22 pm

    That is how it should be but how many of the ruling class have lived and supported families on productive jobs, where they made or created something? How many have run businesses where they had to meet a payroll and make a profit?

    What is the re-election rate for incumbents, even when the approval rates are below 25%.

    They have very little connection with me and very little in common. I am accountable for my actions, they are not, even when their actions are criminal in many cases. If I don’t like a business or it’s CEO I don’t have to do business with them, at least I don’t unless they bribe our rulers into mandating that I do so. I can’t stop politicians from intruding in my life.

    I am 60 years old and I have never accepted medical services in my adult life I did not pay for, even when I did not have to by law. I have often not had insurance but always paid my medical bills. I can not afford insurance or I will lose my home so the IRS is going to fine me to keep my home. I will get nothing for this. How is this different than the Mob charging me protection?

    Is this extortion by the federal government for the benefit of legally favored companies and cronies really what our founders wanted the government to be used for? This is what the Constitution was written to enable? I don’t think so.

    Machinist (b6f7da)

  99. To each their own, but “cutthroat racketeers = insurance companies” is a sad and incompete equation. It sounds a little bit like the President railing against doctors cutting off limbs to charge more. Demonization is supposedly a bad thing, right?

    But then, I’m not an expert on the medical insurance industry, nor a lawyer. It sounds like bumper-sticker thinking, to which both sides of the aisle appear addicted. Big systems are complex, not simple.

    Still, I have read and recommend “The Cure,” by David Gratzer (he has a more recent book that is worth folks’ time, as well).

    Simon Jester (c8876d)

  100. “Government is us. If government sucks, it’s because we suck.
    Comment by Leviticus — 3/28/2012 @ 12:22 pm

    – The part of “we” that placed Obama, Pelosi & Reid into positions of power? They suck.”

    Comment by Icy — 3/28/2012 @ 12:27 pm

    I disagree. This kind of power isn’t to be trusted to any party. It is too much power and too much immunity to hand over to anyone. Our founders knew this.

    Machinist (b6f7da)

  101. Man, you’re passive-aggressive. Can’t even engage in a little rhetorical flourish without getting a lecture about how dumb college kids are how big systems are complex, not simple.

    Leviticus (870be5)

  102. That’s to Mr. Jester, not Machinist, obviously.

    Leviticus (870be5)

  103. The radiologists got about $8,000.00 for four CT scans and one MRI that none could find the bleed in my brain. The interventional neurologist that sent a camera to my brain from my groin found it and got $1,700.00 for his trouble. The neurosurgeon that stopped it got about $4,000.00. The hospital billed over $170,000.00 for the use of its facilities and nurses that I would cross the street to avoid.

    There’s a lot wrong with our health-care delivery system, but our golf-playing, $85m vacation every other month, miserable cluster **** of a failure, Chicago Machine hack is not the one to fix it.

    nk (dec503)

  104. attack of suckbots
    we are all leviticvs
    some more than others

    Colonel Haiku (f4cb77)

  105. To use the mandate to treat people to justify this is ridiculous. The mandate itself requires that people give their service without compensation. Now we are to remove my rights because others have been forced to serve? Why not free the ones forced to serve instead. That is a market solution. If the market was truly open then I could afford the insurance I want and need. In the mean time why should I be denied hospital service I can pay for because others abuse an immoral law in the first place.

    To use the car insurance example, illegal aliens are not required to have insurance or a licence so should non car owners be required to buy insurance to help cover the costs? (This point may have been made)

    We keep piling more wrongs on wrongs rather than addressing the problems the earlier wrongs created. Where does this end but the government just claiming they need absolute power to sort out the mess?

    Machinist (b6f7da)

  106. O, Pelosi & Reid
    the new power suck trio
    Haiku Productions!

    Colonel Haiku (f4cb77)

  107. nk – how much of that did the insurance company deny outright? My dad got bit by a rattlesnake while climbing and (eventually) got a couple units of CroFab and a three day stay in a hospital in Las Cruces. The hospital bill was $18,000; my parents paid their ($600) deductible, and the insurance company denied all but ($2000) of what the hospital charged for my dad’s treatment.

    Leviticus (870be5)

  108. stop!in the name
    of Constitution before
    you break teh healthcare

    – The Supremes

    Colonel Haiku (f4cb77)

  109. Leviticus, when you said “denied”, do you mean that the insurance company refused to pay the bill or that the insurance company used its contract with the hospital to discount the charges?

    About 15 years ago, I had a foot infection that required hospitalization. Back then, the Democrats had not yet banned real high deductable catastrophic style health insurance which I had. I had a $2000 deductable. The hospital bill for me started out around $8K or $9K and after the insurance company got done with their contract discounts, the bill was exactly $1995. But I was happy.

    SPQR (26be8b)

  110. teh christian bale is
    skinny scrawny Machinist
    you know what i mean

    http://moviesmedia.ign.com/movies/image/themachinist_christianbale1_1097866350.jpg

    Colonel Haiku (f4cb77)

  111. hear that sucking sound?
    that’s the weak-suck democrats
    readying teh spin

    Colonel Haiku (f4cb77)

  112. When I wrote “got” I meant “got” and when I wrote “billed” I meant “billed”. I paid for my deductible and co-pay so that’s how I know the “gots”. My insurance is a PPO and there is assignment, my max out-of-pocket is $5,000.00, so I likely won’t know what the hospital actually gets paid.

    nk (dec503)

  113. Should you ever defend a medical bills collections case against your self-pay client, this is how you do it:

    Call the hospital’s attorney as soon as you get the papers:

    You: You’re asking $10,000.00. How much would AETNA pay you under assignment?
    Him: I’ll call you right back.
    Three minutes later.
    Him: $1,733,58.
    You: My client will walk a cashier’s check to your office for that before the end of the day.
    Him: I’ll have a release and stipulation to dismiss for him.

    nk (dec503)

  114. people shouldn’t be able to get healthcare without health insurance

    People have a right to seek healthcare, being part of the right to life. Not so driving.

    Kevin M (bf8ad7)

  115. If auto and health insurance was the same, it would require that your auto insurance pay for tire changes, gasoline, oil changes, and routine maintenance, and your rates would be oddles of times higher than what we pay now.

    +1

    And it should be noted that the TYPE of health insurance that most closely corresponds to auto insurance (catastrophic care insurance) is outlawed by the ACA.

    Kevin M (bf8ad7)

  116. nk #113,

    I paid a lot of health care bills before I discovered that. If only I’d known you 10 or 20 years ago!

    DRJ (a83b8b)

  117. Leviticus, when you said “denied”, do you mean that the insurance company refused to pay the bill or that the insurance company used its contract with the hospital to discount the charges?

    I’m sure it’s the latter. My wife had a surgery a few years back. The rack rate for the bill: $50K. The negotiated rate: $3000. Our slice: $600.

    Which is why I say anyone who does not have a policy with negotiated rates is a fool. The co-pay percentage is almost immaterial, but the discounted rate is huge. And yet people pay huge premiums to get a 90/10 policy over an 80/20 or 70/30…

    Kevin M (bf8ad7)

  118. It’s ok, DRJ. I never learned how to bill my street cred, either. 😉 A real lawyer would have put in at least ten billable hours, kept the client on tenterhooks for half a year, made the same deal eventually, and had the client thinking him a genius.

    nk (dec503)

  119. “Leviticus, when you said “denied”, do you mean that the insurance company refused to pay the bill or that the insurance company used its contract with the hospital to discount the charges?”

    – Kevin

    Is there a huge difference, where (for instance) Blue Cross/Blue Shield has a virtual local monopoly?

    Leviticus (870be5)

  120. Better passive-aggressive than making cocksure judgements outside one’s own area, yes?

    But do carry on, whether or not you care to read a book. Leviticus, I didn’t call you a name. I do maintain that demonizing insurance companies is part of the progressive playbook.

    Sort of like presuming all undergraduates are pretty arrogant and ignorant, right? And I would never do that.

    Simon Jester (c8876d)

  121. There is a huge difference in what it costs for medical treatment in some places, Leviticus, although I don’t know about where you live.

    When our son stayed a week each at 4 different hospitals in 4 months, the charges ranged from over $38,000 at a large Texas county hospital to just under $5,000 at the Mayo Clinic. The treatments were similar but the charges varied because the county hospital had to cover uninsured care for a substantial percentage of its patients, while hospitals like the Mayo Clinic rarely accept uninsured patients.

    In 2008, the cost of uninsured hospital stays in the U.S. was over $16B, and that cost isn’t borne equally by all hospitals. That’s one reason why it can really help to have a negotiated rate through your insurance policy. Of course, it also shifts the burden to other patients and ultimately to the federal, state or local taxpayers who have to cover those uninsured patients.

    DRJ (a83b8b)

  122. Also, note that the Mayo Clinic is one of the few institutions to partially opt out of Medicare and oppose ObamaCare. Mayo understands that “free” care is not sustainable.

    DRJ (a83b8b)

  123. -Food is more important than healthcare.
    -Supermarkets carry products that move in interstate commerce.
    -Some of those products are regulated or subsidized by the Federal government.

    -Can the Federal government require stores to give away food to those who don’t pay? Why is this different, if they can not?

    Machinist (b6f7da)

  124. “But do carry on, whether or not you care to read a book.”

    – Simon Jester

    Whatever. You handle the savvy-pants big boy stuff and I’ll just dumb my dumb self down to the station and take the Dumb Train to Dumbville with my dumb buddies.

    Leviticus (870be5)

  125. take the last train to dumbville
    and he’ll meet you at the station
    if you can be there by 4:30
    you’ll have some time for contemplation
    don’t be slow… oh no, no no
    oh no no NOOOOO!

    Colonel Haiku (f4cb77)

  126. For many years, I was denied coverage because of a pinched nerve in my lower back that the HMO I belonged to said wasn’t really happening. After two years of constant pain, I was finally able to receive an MRI which showed that there was insufficient space between the vertebrae for the nerves to pass between them. One epidural to numb the pain and two days for the muscles to un-spasm and I was dramatically better. But the 27 medical appointments over two years disqualified me from getting insurance.

    During the following 10 years, I paid cash for all my medical needs. I simply told the person at checkin that I was paying cash and wrote out a check when they asked for it. During this time frame, I was able to save more than $28,000 on insurance premiums. I was, however, also paying an exorbitant rate for a catastrophic policy with a $5000 deductible. During that time the premium went from $113 per month to over $500 per month while the items covered continued to decrease. Also, Co-pays more than quadrupled. Every year, the rate jumped two times, on the anniversary of the date the policy was written and on the first day of the company’s fiscal year.

    The whole argument is couched as being about health care. It is not. The whole argument is about who pays for health care and how. Under the ACA, I would not be allowed to to what I did. I would have had to pay that extra $28,000 to some insurance company who would bundle in such necessities prenatal care, birth control, breast cancer screening, etc. For the record, I am male, have had a vasectomy and will probably never be asked to submit to a mammogram.

    When I was paying cash for everything, I typically paid less than 50% of what the doctor would have billed the insurance company for the same service.

    Our problems with expensive health care are directly related to who pays for the services. Before everyone had insurance, doctors had to tell the patients what the procedure cost and why. The patient then determined whether it was something they could afford or really needed. Each person was involved in the paying for the services they used. Now, every service is only as expensive as your co-pay.

    So before, if you had the flu, you knew that it would be better in a week. Now, you go to the doctor, pay the $15 co-pay, demand antibiotics that will take 7 days to make you better and have the doctor write a note to explain why you are taking a day or 7 off work.

    The only difference in cost is that the doctor has to employ someone to write the bills, submit them to the insurance company, track where they are in the system, resubmit the bill because it somehow never got into the system, and eventually, maybe, get paid for the work. If they happen to be under Medicare, then you are likely only receiving 30% payment for the work you submit. So the prices go up for everyone else to cover these extra expenses.

    Abolish employer provided insurance. Add the previous premium to the employee’s paycheck. Let them decide whether to buy health insurance or open a health savings account with that extra money. Make medical bills just like student loans in that they are not wiped out via bankruptcy.

    Allow the Emergency rooms to triage the patients and only treat emergencies with non emergency patients sent to the regular clinic down the road. Station INS officers in each ER to facilitate rapid deportation for illegals using the ER for non life threatening situation.

    Jay H Curtis (804124)

  127. Good comment, Jay H. Curtis.

    DRJ (a83b8b)

  128. Colonel, you are soooooo old!

    Icy (25eae8)

  129. Yeah, the Republican Party has nothing but gems.
    Comment by Leviticus — 3/28/2012 @ 12:30 pm

    — Never said that they do. What I am saying is that the people that voted for suck politicians, they’re the part of “we” that suck. Those of us that did not vote for suck politicians, we only suck a little bit, due to our inability to change the minds of our fellow sucks-that-vote-for-sucks voters.

    Icy (25eae8)

  130. Re #118
    That is why lawyers in general have a bad reputation, and nk and others are respected.

    MD in Philly (3d3f72)

  131. Jay H. Curtis–

    I second DRJ’s notice of your post above. I think in comment sections many of us tend to speak in short-hand and condense our Obamacare arguments to code because it has become so clear and obvious to us over the last few years. We may assume others have had similar life experiences, have the same facts at their disposal and are aware of the various issues. In fact, many of the same points you just covered were made in short bursts by other commenters in this thread. But having it all laid out and tied together in such a comprehensive and cogent and personal message as you have done may be very helpful to someone who is just getting up to speed on the Healthcare/SCOTUS issue, or needs some reminders, or is coming to it from a different political perspective. Thanks.

    elissa (189bdf)

  132. I agree with elissa and thank you. I would add another cost factor as tort abuse, meaning we all pay for high insurance rates and extra tests.

    Machinist (b6f7da)

  133. Does that mean the Federal government can regulate what lawyers charge and who they work for or represent under the CC???? Should the Feds say you can’t refuse to represent someone like Deb F. just because of her history of harassing her lawyers and being a nut?

    Machinist (b6f7da)

  134. “Abolish employer provided insurance. Add the previous premium to the employee’s paycheck. Let them decide whether to buy health insurance or open a health savings account with that extra money. Make medical bills just like student loans in that they are not wiped out via bankruptcy.”

    Jay H Curtis – I may be out in left field, but I think one of the reasons for our screwed up system is that consumers don’t have enough skin in the game in general on the cost side with employer paid insurance. Whether it is the employer only passing on a small portion of the actual premium costs to employees or small copays that encourage overconsumption of services. Your comments dovetail nicely with my thinking on that subject. Putting cash in employees hands, allowing them to buy into the employer plan or not, giving a tax deduction perhaps for the medical expenses, gives individuals much more skin in the game than they have now.

    daleyrocks (bf33e9)

  135. Re #130. Thank you.

    When you have defended a double murderer, with rape, sodomy, and kidnapping as additional aggravating circumstances, and helped (I was part of a team) get him 80 years in a death penalty time, defending poor people over their medical bills is a breath of fresh air.

    nk (dec503)

  136. People aren’t “required” to purchase auto insurance at all, which was my whole point – people shouldn’t be required to purchase health insurance either.
    — Semi-clarity AT LAST! You are opposed to the individual mandate. Good for you!

    But in most states, people can’t (legally) drive a car without car insurance; from a market standpoint, people shouldn’t be able to get healthcare without health insurance, either
    — Says you. It’s STILL an apples to oranges comparison, though, from a liberty standpoint. It is reasonable, due to the high likelihood of being involved in an auto accident at some point, to mandate liability coverage for the protection of the party that is not at-fault. It is NOT reasonable to require the carrying of health insurance by someone that chooses not to carry it, or that is young & healthy and therefore does not have a high likelihood of needing hospital care until many decades hence.

    because there are analogous externalities (that just happen to be more less concentrated in the case of healthcare.
    — Uh, “more or less”? just “less concentrated”? Anyway, the only “analogous externalities” I see is the desire on the part of insurance companies (what was it that you called them?) to add more people to the rolls. Yeah well, I’m sure the price of the Chevy Volt would come down if we could just compel more people to buy them.

    I don’t see anything else in your comment worth addressing.
    — Tacit acceptance, or summary dismissal? ‘Tis hard to divine.

    Icy (0ad44c)

  137. Thank you, DRJ, elissa, Machinist and daleyrocks, for the compliment. This means a lot to me as each of you are consistently amongst the short list of people whose posts I admire.

    I agree that tort reform is critical to controlling costs. But consider that the Trial Lawyers Association is one of the most influential lobbying groups and that the majority of Senators and Representatives are lawyers, I seriously doubt that we will see any reform in this area in my life time.

    Sometimes what seems so obvious to one is a totally foreign concept to others. For example, Justice Ginsberg could not get her head around the idea that people who are eligible for Medicaid would choose not to sign up for it. She was just sure that the ones who didn’t sign up must not have been educated as to availability or the overwhelming benefit they were missing out on.

    If you read the transcripts, it seems to me that there is a complete disconnect with the Solicitor General and several of the Justices on the real point of the debate. There seems to be a firm belief that all health care is paid for with insurance and that anyone without insurance is automatically a deadbeat, shifting the costs of their medical needs to others. This just isn’t so. Even today, in Holton Kansas, the majority of health care is paid for in cash or check. (Yes, some people still use checks.) I am sure that this is not the only place this is true. It is the only place I have personal knowledge of this being true, though. 😎

    As one of the Justices stated on Tuesday, words have meanings and those meanings are important. Also, context is critical to understanding what is being argued. There were several exchanges on Tuesday where one person is talking about receiving health care, while the other is talking about paying for healthcare and both are using the same terminology with different meanings. It got rather confusing. I find this disconcerting because we are supposed to be listening to the smartest people in any room and they can’t seem to settle on one set of terms, meanings and concepts to argue about.

    I wish someone had sat down and written a short cheat sheet for the lawyers and Justices so that they would all be on the same page when the terms were used. And I really wish that I didn’t feel this was necessary.

    Jay H Curtis (804124)

  138. If they toss Obamacare (or any part of it), I’m going to love watching them deal with challenges to all the other federal programs that are equally as unconstitutional (Social “Security” for starters) in the years to come.

    Dave Surls (46b08c)

  139. That’s a nice dream, Dave, but it’s not going to happen.

    Icy (0ad44c)

  140. Lawyers got us in to this mess. And they will do anything to keep their cash flow fresh. Time for carpenters,gardeners,janitors and all other non union workers to be congress critters.

    sickofrinos (44de53)

  141. “That’s a nice dream, Dave, but it’s not going to happen.”

    You mean you think that they won’t toss out Obamacare?

    Or, you don’t think anyone would try to challenge other government programs as unconstituional, if Obamacare is tossed out?

    Dave Surls (46b08c)

  142. “Government is us. If government sucks, it’s because we suck.”

    Speak for yourself. Government ain’t me. I wouldn’t even let it into my parlor.

    Government, at best, is a rabid wolf you keep chained up in your yard to keep rabid coyotes away.

    If I thought there was a chance in hell of not having it, I’d sign up with the anarchists in a second. Unfortunately, there is no such thing as human beings without government. We’re pack animals at heart and there’s always going to be some kind of pack hierarchy. The only way you can get away from it is to be a hermit. And, that’s just the way it is.

    Besides, there’s always a rabid coyote lurking around somewhere.

    And governments suck, whether we suck or not. The Nazis sucked, but Anne Frank was o.k.

    The best you can do is have a government that sucks the least. A Republican government sucks, a liberal Democrat government sucks bad, and a communist government sucks the dimples out of a golf ball.

    Dave Surls (46b08c)


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