I want everyone in America, indeed everyone in the world, to have chocolate milk, if they like it. I also want them to have a puppy or a bunny, if they want one. Further, I want them to be the exact right temperature for them at all times—just like Baby Bear’s porridge, neither too hot nor too cold, but just right.
And, I want them all to have healthcare. But, that is not what yesterday’s court ruling is about, and that is not what the debate over Obamacare is really about, or at least should be about. It’s not about whether healthcare or chocolate milk or puppies or comfortable temperatures are good things. It is about liberty and our constitutional Republic. It is about the rule of law.
After this ruling, there is no meaningful restraint on Congressional power. Whether the monstrosity that is Obamacare is a constitutional act pursuant to the Commerce Clause or a constitutional tax pursuant to the Taxing Clause makes precious little practical difference. I suppose, under the Commerce Clause, it would have been easier to make it a crime not to have health insurance. However, under the Taxing Clause, if you fail to pay the appropriate penalty for failing to have health insurance on your tax return, then you can eventually be guilty of the crime of tax evasion. After all, that is how they got Al Capone.
The point is that we now live in a nation where there is no realistic limit on the power of the central government, despite the fact that the words of our Constitution purport to set out a government of limited powers with the powers not specifically enumerated and granted to the central government reserved to the states and/or the people. We now live in a nation where the rule of law is little more than a cliché. We have abandoned our Constitutional Republic because we (Democrats, Republicans, and Independents) wanted favors from the public treasury. We started down this road a long time ago with programs such as Social Security, Medicare, Medicaid, Federal Unemployment Insurance, No Child Left Behind and like measures centralizing the government control of education, the Federal Reserve System, and the list could go on and on. Obamacare is just the latest manifestation of this steady march to totalitarianism and the savior state. (And, for all of the Christians out there who think this is just wonderful, be warned. Jesus is the only Lord and Savior of the universe, and He will not suffer competitors for those titles.)
Again, the issue is not whether healthcare, comfortable temperatures, old-age pensions, bunnies, help for the unemployed, education, chocolate milk, and puppies are good things, but rather whether our Constitution grants the federal government the power to regulate, oversee, and tax to provide these things. I am reminded of James Madison’s Veto of the Bonus Bill of 1817. After concluding that none of the enumerated powers gave to the central government the power to finance and build roads and canals, he wrote:
I am not unaware of the great importance of roads and canals and the improved navigation of water courses, and that a power in the National Legislature to provide for them might be exercised with signal advantage to the general prosperity. But seeing that such a power is not expressly given by the Constitution, and believing that it can not be deduced from any part of it without an inadmissible latitude of construction and reliance on insufficient precedents; believing also that the permanent success of the Constitution depends on a definite partition of powers between the General and the State Governments, and that no adequate landmarks would be left by the constructive extension of the powers of Congress as proposed in the bill, I have no option but to withhold my signature from it, and to cherishing the hope that its beneficial objects may be attained by a resort for the necessary powers to the same wisdom and virtue in the nation which established the Constitution in its actual form and providently marked out in the instrument itself a safe and practicable mode of improving it as experience might suggest.
To clarify, President Madison had the courage to declare a popular law (the Bonus Bill of 1817) that provided for good things (roads and canals and public works) unconstitutional because it was not within the enumerated powers given to Congress. President Madison believed that the liberty secured by a truly limited federal government and the rule of law was precious thing worth defending courageously. And, by the grace of God, courageous acts like that created and established our Constitutional Republic, securing the blessings of liberty to those of the founding era and their posterity.
Would that such courage and commitment could be found today—in the White House, the Halls of Congress, or the Chief Justice’s seat. Would that it could be found in our law schools. Would that it could be found in our pulpits and church pews. Would that it could be found in the hearts of Americans all across our great nation. But, alas, to paraphrase Gandalf’s assessment of Gondor, the ideological bloodline of the Founders has failed and the rule of America has been given to lesser men. I guess the only question is whether there is an Aragorn out there somewhere?
.jpg)
{ 4 comments… read them below or add one }
Ron Paul = Aragorn
Really well said, Professor. Any thoughts on whether the tax rationale presented by C.J. Roberts has any limiting principle?
Okay people, let’s talk.
No, the government can’t force people to purchase anything. There is a significant difference between health insurance and random goods/services available in the free market. One conservative politician drew the analogy that if the individual mandate stands, the government can force you to buy broccoli. That’s false, and the ruling doesn’t say anything that would set that precedent.
The health care industry wastes billions of dollars annually, and still fails to achieve its goal. The invisible hand of the free market fails to motivate companies not to cancel coverage when people get sick, deny them coverage for preexisting conditions (which makes sense), and deny coverage to sick children. This law handles all of those problems – major problems that affect people who suffer from ailments due to no fault of their own. Banning these practices, however, leads to a situation where the insurance companies could be screwed by customers who refuse to pay for coverage until they get sick. So to offset this possibility, people are required to carry a plan at all times. Does it suck? Kind of, particularly if you didn’t want to pay for health insurance.
But if you don’t pay for health insurance and you get sick, you still get care. And the hospital makes up for your inability to pay by raising the premiums for insurance companies, who in turn raise their customers’ premiums.
To put that simply – if you don’t purchase health insurance, I pay for your health care. I don’t want to do that. And frankly, I’m sick of my health insurance costs being so high due to 50 million uninsured people living off one of the biggest inadvertent redistribution of wealth schemes ever hatched on the “free” market: the private health insurance industry.
Now if people don’t buy health insurance, they get fined, correct – but they still get health care. And nobody can get jailed or prosecuted for not buying health insurance. Those fines that get collected go into subsidizing health insurance costs for poor people who didn’t have it previously, but now choose to purchase it.
So here’s the best part, and here’s why conservatives will like this law – this means that the fines go into health insurance companies. The same companies whose premiums get raised when uninsured people get care. So the people are paying for their own health care through the fines. And I’m not. I like that.
This law requires people to take responsibility and pay for their own health care – sounds to me like a good mix between government oversight and conservative values.
And if you think about it (to go back to that terrible analogy), I don’t pay out the asshole for vegetables just because a two thirds of the country chooses to be obese and not buy any vegetables of their own. Nor do I get denied access to vegetables once I start eating them more often. So the notion that the government can “force you to purchase anything” ignore the fundamental differences between “everything” and health insurance.
iced327 – A lot to reply to in that last post. I’ll first address the legal implications of the decision, then say a few words about the policy you suggest is so good.
You present the claim that the government can’t force you to purchase anything, for example, it can’t force you to buy broccoli. Fair enough. Chief Justice Roberts opinion doesn’t say that, nor does the good professor say that it does. Instead, he argues–rightly in my view–that under the Chief Justice’s opinion, the government can tax failure to purchase an item such that it will effectively compel behavior, either through the threat of a fine, or the threat of jail time for failure to pay the fine. I don’t see you address this argument at all. Under the Obamacare ruling, it can now be said that while Congress can not compel eating broccoli, it seems that it can tax you if you don’t purchase broccoli. The point of the “broccoli” illustration is to demonstrate what the pro-ACA line of reasoning necessarily does: it obliterates any limits on Congressional authority, which contradicts the limited authority granted to Congress under Article I, section 8. I have more to say about that here: http://bit.ly/M6EUZb.
The fundamental question is: do you want a government with that kind of power?
Moving on to the policy issues, I think you’re a little off on some of your conclusions. To the extent you characterize this as a free-rider problem, I don’t think that’s right. The fact that everyone will get healthcare regardless of an ability to pay is itself the result of a legal requirement. In other words, you could just as easily solve the free-rider problem, which you obviously don’t like, by getting rid of that legal requirement.
You might say that’s pretty heartless, but I don’t think the policy passed is actually any more kind or better at handling costs. In fact, it explodes costs, and I very much doubt how much cost all these free riders are imposing in the first place. Apparently, the free rider problem justifies all sorts of government mischief that goes well beyond that relatively limited problem.
The ACA makes it illegal for an insurance company to exclude coverage to those with preexisting conditions, or to charge differently based on the “health status” of the insured (the so-called “community rating” provision). The community rating provision is terrible–it puts skyrocketing costs ever upwards. If an insurance company can’t charge based on health risks, it cannot efficiently price the coverage it provides. What this is, in effect, is a massive wealth transfer from the healthy to unhealthy. It is not a cost saving provision–if anything, it further divorces people from their decisions, which naturally increases costs.
Costs will continue to explode so long as government pushes a policy that promotes “insurance” for things that don’t require it or uses it as a means to promote ideological ends. The HHS is going to require all sorts of miscellaneous, asinine coverage that (1) many people don’t need, or (2) is a fixed cost that is predictable and therefore does not require insurance coverage (why add the middle man for a known, fixed cost?) The mandate to require coverage for birth control and abortion-inducing drugs satisfies both of these criteria. If I don’t need such coverage, I should be able to reduce costs by foregoing that coverage. Of course, if your goal is to promote certain social ends you believe to be good, and not to control costs, these minimum coverage provisions make a lot of sense. But they have nothing to do with reducing costs.
The ACA, in sum, has nothing to do with cost control, and everything to do with massively expanding bureaucracy, expanding coverage for certain voting blocks, and projecting the appearance of “doing something.” Payouts to insurance companies makes this no better, as you suggest–indeed, it shows the pernicious corporatism involved in this scheme.
If we want to do something about costs, we need to stop divorcing the benefits people receive from the decisions they make (like community rating, insurance subsidies, and the very way we treat health “insurance” as a plan rather than as a means to protect against catastrophe). I suggest we start by getting rid of regulations that mandate minimum coverage. We can also get rid of COPN laws in states that have them (another pernicious, corporatist scheme appropriate for discussion some other day). Make insurance and healthcare an actual product subject to market mechanisms, which they haven’t been for quite sometime.
You must log in to post a comment.
{ 1 trackback }