Health Care Reform

[elfshadow]

Why's it okay for states to require everyone to carry auto insurance but not the feds to require health insurance?

Also, as I said earlier, you can choose not to have a car and thus not pay for auto insurance. You can't choose not to have health.


I should emphasize that I truly do believe we needed health care reform. This part of the law just does not sit well with me. A better idea, instead of mandating health insurance for all and keeping the current employment-based insurance system, would have been to keep health insurance a choice and move it to an individual- and family-based purchasing system. This supplemented by a public option funded solely on premiums would have been a far better decision, IMO.


I suppose that's water under the bridge, though. I don't by any means dislike all aspects of this bill, and the most lasting reform happens incrementally. I just don't understand why so many good ideas (at least, good ideas in my mind) were never even in consideration.

[yovargas]

I would also like to think that even if I loved the idea of the mandate, I'd still be concerned about its constitutionality. But I'll probably stop now as from past experience the constitutionality stuff isn't a discussion that ever goes anywhere.

[vison]

I confess the whole bill puzzles me until I stop and remember that Mr. Obama is pretty Right Wing by Canadian standards. And I'm not being sarcastic or snotty - he is by no means left of centre.

I think it is absurd to require people to buy private insurance - it builds in a whole unnecessary level of bureaucracy to deal with enforcement and penalties. It would have been so much simpler (and wiser) to create a public, government-operated insurance scheme. But that wasn't going to fly, was it? I've followed this sort of half-heartedly here and elsewhere and have been driven nearly mad with confusion when confronted with the bizarre objections people had and have with this issue.

Of course it's going to cost money. There is no way it can't. But it needn't cost what this is going to cost - it's as if it was designed to be as inefficient as possible. However, now that you have some kind of national coverage you can tweak it over the years and maybe make it better.

The abortion issue is another thing. It has been made clear that whatever the situation regarding federal funding for abortions is concerned, it hasn't changed. The Hyde amendment? Is that it? And yet I heard and read from 3 different Republicans this morning that this bill expands abortion coverage. The man who shouted out "baby killer" asserted it once again in the face of all reason.

There are issues underneath all this that have little to do with health insurance or even abortion. David Frum is absolutely right.

[elfshadow]

I would be interested in seeing a Constitutional justification for the mandate. I haven't seen one, although to be fair I haven't spent much time looking.

[Voronwë the Faithful]

I would do that, Elsha, if only you or someone else would say what constitutional provision you believe the mandate violates. It's not the commerce clause; that's separate issue which is fairly easily addressed. I have still yet to see anyone point to a reason why the mandate is "unconstitutional" as opposed to "a bad idea."

Regarding the commerce clause, the court has long held that Congress need only show that there is a "rational basis" for concluding that that the subject of the legislation affects interstate commerce. This isn't even a close case in that regard. There is literally no viable argument short of reversing the entire history of commerce clause jurisprudence that would justify holding this law unconstitutional on the grounds that Congress did not have the authority to do this under the commerce clause.

[elfshadow]

Fair enough, V! I guess what makes me most uncomfortable is that the federal government is mandating the purchase of a private product for all citizens. The regulation of the insurance companies themselves is certainly allowable under the Commerce Clause, it seems to me. However, I do not believe that can be a justification for the mandated purchase of health insurance. It is one thing for Congress to regulate, say, the grapefruit industry. It is another thing altogether for Congress to require that everyone buy grapefruit. I believe hal and yov have already suggested that the mandate violates the 10th amendment and I think that is a reasonable argument. Why couldn't a mandate be voted on in a state-by-state referendum? It is a tough issue to discuss because, as you said, there is very little precedent for such a thing. I will try to find more information on it.


For the record, I do not necessarily think mandated purchase of insurance is a bad idea. I actually think it is very logical, since a larger insurance pool will decrease overall risk (in theory) and the insured people won't be stuck paying for the cost of health care for the uninsured who can't afford it. But I still question its constitutionality.

[N.E. Brigand]

This conservative web site gathers together some opinions on why the mandate requirement could be unconstitutional. Would any case have standing until it goes into effect a few years from now?

And if, at that time, the courts struck down the mandate requirement as unconstitutional, wouldn't that rapidly drive insurance companies out of business? Since there would be no incentive for people to buy insurance before getting sick, when the companies couldn't deny them coverage? Is the possible unconstitutionality of the mandate requirement the Democrats' secret plan to revive the public option?

[Voronwë the Faithful]

It is one thing for Congress to regulate, say, the grapefruit industry. It is another thing altogether for Congress to require that everyone buy grapefruit.

There would be no rational basis for Congress to require that everyone buy grapefruit. There certainly is a rational basis for Congress to require that everyone buy health insurance, so long as they can afford it (and to subsidize those who can't.

I believe hal and yov have already suggested that the mandate violates the 10th amendment and I think that is a reasonable argument. Why couldn't a mandate be voted on in a state-by-state referendum?

I don't mean to be rude, but that simply doesn't make any sense. Either Congress has the right to regulate health care, in which case they have the right to take whatever action they deem necessary to do so, so long as as there is a rational basis for the action, or they don't have that right and it should be left to the states.

I am still not understanding what basis you, yov, hal or anyone else has for believing that the mandate is unconstitutional.

[nerdanel]

Some links of potential interest from law professors:

http://www.washingtonpost.com/wp-dyn/co ... 01470.html

http://prawfsblawg.blogs.com/prawfsblaw ... ew-it.html

http://volokh.com/2010/03/22/what-are-t ... l-mandate/

Obviously, there is room for reasonable, trained minds to reach very different conclusions on the potential issues here.

[Griffon64]

It is one thing for Congress to regulate, say, the grapefruit industry. It is another thing altogether for Congress to require that everyone buy grapefruit.

There would be no rational basis for Congress to require that everyone buy grapefruit. There certainly is a rational basis for Congress to require that everyone buy health insurance, so long as they can afford it (and to subsidize those who can't.

Well, does the basis and whether it is rational or not then dictate whether the decision is constitutional or not? See, to me that simply doesn't make any sense, and I likewise do not intend to be rude.

On the other hand, I suppose I'm not learned at law, and that would be why it doesn't make sense to me that the law can be valid for something that is believed to make rational sense and invalid for something that isn't.

I think Congress should mandate that everyone buys and eats grapefruit, oranges and other healthful food, and they should subsidize those who can't afford it. My rational basis for that is that healthy food is shown to lead to healthier lives, and that that, in turn, keeps down health care costs.

ETA: cross-posted with nerdanel, will read her links.

[Voronwë the Faithful]

I remain completely unconvinced. In the unlikely event that the issue ever reaches the Supreme Court, it will be an 8-1 vote, with Thomas being the lone dissent. I guarantee it.

Edit: I should know better than to try to discuss these types of issues here. Never again.

[River]

Honestly, I'm not in love with mandating that everyone buy private insurance. I would have preferred a public option to compete with the private companies, a system ala Canada or Australia. In fact, that idea was proposed last summer. And then the opposition whipped up a frenzy about socialism and death panels and so any sort of public option became off limits. Which, if you're an executive for a private insurance company is fantastic, because now everyone has to buy your product. The only downside for them is they now have to sell their product to everyone, no exceptions, not even for the people who'll actually need it, and no rescinding products right when they people who've been paying good money for their policies actually need them, either.

Anyway, we'll see what happens. Just putting a stop to the more abusive practices is an excellent start. Making them subject to anti-trust laws, like everyone else, is also nice. Consumers caught in a monopoloy have no choice.

ETA: I'm watching the signign of the bill live...my labmate and I are wondering why he keeps changing pens.

[elfshadow]

I see what you're saying, Voronwë. I can't argue against the mandate being rational, because I believe that it is rational. But as Griffy said, I still don't believe that makes it constitutional. Not everything that is rational is constitutional. I see a significant distinction between "regulation" and "mandated purchase", and while the former is acceptable and constitutionally justified, I do not think the same is true of the latter. The mandate is different from insurance company regulation, which is acceptable under the Commerce Clause. It is different from Medicare, since Medicare is funded from taxes which Congress is constitutionally allowed to levy. I cannot think of any situation from the past that is quite the same.

One argument I can think of in favor of the mandate's constitutionality is that by requiring all capable citizens of purchasing health insurance, Congress is indirectly attempting to regulate the cost of health care. But couldn't this argument apply to a lot of other things? Congress could mandate that all obese people join a weight loss program, or that all smokers join a cessation program. This would certainly lower the overall cost of health care. Congress could even subsidize these programs for low-income people. Does that make such an act constitutional? I don't think it does, and by the same logic I don't think the mandate is constitutional.


Thank you for those links, nel, they were very interesting to read and consider.


ETA: Voronwë, I don't see why you would stop discussing it. I'm interested to keep hearing your point of view. I am not convinced one way or the other, and I would very much like to keep talking about it.

River, it's so he can give them away to lots of special people who want a part of history. I learned that from The West Wing.

[yovargas]

Voronwë, I certainly hope you'd refuse to discuss it because of a few disagreements. That'd be disappointing and not very like you.

elsha has pretty much covered my thoughts. To my knowledge, it has never been made illegal to not purchase a product and it looks like a very unpleasant line to cross, imo.
(Consider that earlier SCOTUS decision which made people afraid that corps will now purchase elections, for example.)

[nerdanel]

Okay, this thread is reopened for business. Slightly more than the last page of the discussion has been split off. Analogies to slavery are not permitted in this discussion. Everyone should refrain from labeling others' views on the healthcare bill as "lies," or from calling anyone else a "liar." If anyone believes that a member's, or public figure's, position on this bill is inaccurate, they may state that -- preferably explaining why the comment is inaccurate. If anyone fails to follow these rules, please alert the Marshals in the Grubb thread or privately via PM, rather than engaging with them in this thread.

[vison]

I agree that the requirement to purchase private insurance is a bad thing. I don't - I REALLY don't - understand why this was more palatable to the legislators than a public option. Because the insurance companies can't make money if they aren't allowed to refuse a client or treatment for a client - at the same time not being allowed to raise premiums.

I think the health insurance companies in the US are largely a blight on the landscape and if this serves to drive them out of business, that will be a good thing. But it's a very inefficient way to do it, AFAIC.

[N.E. Brigand]

Insurance companies fear that the public option would put them entirely out of business, because the government, not needing to make a profit, would be an unfair competitor.

[Alatar]

Okay, this thread is reopened for business. Slightly more than the last page of the discussion has been split off. Analogies to slavery are not permitted in this discussion. Everyone should refrain from labeling others' views on the healthcare bill as "lies," or from calling anyone else a "liar." If anyone believes that a member's, or public figure's, position on this bill is inaccurate, they may state that -- preferably explaining why the comment is inaccurate. If anyone fails to follow these rules, please alert the Marshals in the Grubb thread, rather than engaging with them in this thread.

Can someone point me to where the split off threads are? I can't find them and I hate only getting half a discussion, however distasteful.

[Túrin Turambar]

Insurance companies fear that the public option would put them entirely out of business, because the government, not needing to make a profit, would be an unfair competitor.

But that hasn't been the case in any country with a public health insurer. Hell, private insurance companies do perfectly fine in Australia, and they're competing with Medicare, which costs you only 0, 1.5 or 2.5% of your total income depending on how much you make. Nor is it the case with education, post or any other service with a mixed public-private system. It's true that they'd probably shrink, but they must know there's no chance of them going out of business.

There was a brief discussion upthread on how much of the cost of healthcare in the U.S. goes into insurance company profit. It isn't much, although I don't have the exact figure on hand. As I've said before, removing the profit motive and having the government run something doesn't necessarily make it cheaper (otherwise there'd be no private economy at all), although there are other good arguments for public healthcare (like the size of the pool).

[vison]

Private insurers do fine in Canada, too. They generally insure the younger, healthier population of working people, of course.

My Dad's union health insurance plan is still in effect for my Mum - it is through a private insurance company. As people of that generation die off, the benefits alter and the plan that my younger sister has through the same employer and the same insurance company is not as good. The union is considering dropping the private insurance and/or paying for BC Medical as a workplace benefit.

The system here, as far as I can tell, works like this: if you are a resident of BC, you are going to be covered under the BC Medical plan. If you haven't joined, or paid premiums, as many young men choose not to do, when you need the coverage, it is provided and you are enrolled. Can they "force" you to pay? Well, like any creditor can "force" you, there are bill collectors, etc. But I've never heard of anyone being refused care because they aren't "on" BC Medical.