National Health Care and the Constitution

Tomorrow I will deal with more fallout from my being accosted by Seth Horowitz of the Luxe Hotel at a Henry Waxman function. Thank you for the support. Today’s discussion is about a unique question being asked about health care itself.

In the ongoing debate over whether to create a government run healthcare program, a new and fascinating debate is starting to take place.

Is the legislation, if passed, illegal?

I broach this train of thought because it is a new argument. Before sharing my own opinion, I was fortunate enough to witness a debate on the subject on the O’Reilly Factor.

Megyn Kelly and Lis Wiehl are part of a segment entitled “Is it legal?”

Megyn Kelly is the conservative and Lis Wiehl is the liberal. Yet neither of them are dummies.

(In an irrelevant tangent, Megyn Kelly is stunningly hot. When she gets angry, she has that Michelle Malkin snarl that makes men want to flip her over their shoulder and go caveman on her.)

Yet on this debate, it was Lis Wiehl that borught up the most interesting angle.

The commerce clause allows the government to regulate interstate commerce. Although a person’s doctor may be local, the medical supplies often come from out of state. Therefore, the government can force people to buy insurance if they choose not to do so.

In California, auto insurance in mandatory. I am unaware of any challenges to the constitutionality of this state law, but it has been the law for some time. If there is a reason why life insurance or health insurance would be treated differently, I am not coming up with that reason.

While I badly want to to see Obamacare defeated, I am also somebody with a deep respect for the law. If this bill gets passed, it will be the law, and if the Supreme Court lets it stand, the discussion should be over.

Liberals are not bound by such constraints because they are not about laws. They are about fairness. They favor equality over legality. This is why California liberals can fight to overturn a ban on gay marriage despite the fact that it passed legally, and was upheld by a court. The left does not care. They are like the baseball team that falls behind 1-0 in a ball game, insists no continuing the game, takes a 2-1 lead, and then decides to end the game. They also do this with elections. All votes must be counted until they take the lead, at which point counting becomes akin to dragging out the process.

Conservatives are hampered because if one is to be a party of laws, emotions such as fairness cannot be factored into decisions.

Obamacare can and should be defeated politically, but I do not see how it can be defeated legally.

If it can, the arguments could be downright dangerous.

Some people claim that Barack Obama is not a citizen. Therefore, his presidency is illegitamite. Furthering down this road, any legislation he gets passed is also tainted.

I am aware that this argument is extreme, but when the legal Pandora’s Box is opened, anything is possible.

While it may seem “unfair” to force people to buy health insurance, conservatives are not about fairness, nor should they be. I hate buying auto insurance. I can’t stand it. Yet the law says I have to do it, so I do it.

This does not mean blindly following the law. It does mean working within the system to see bad laws changed.

Ironically, the same liberals that claim the government can regulate such transactions are the same ones claiming that the government cannot regulate our bodies. This is false. Even the liberals on the Supreme Court in 1974 allowed for restrictions on third trimester abortions. People are not allowed to put illegal drugs into their bodies. One can debate the morality of these laws, but not the legality.

When I say one cannot debate them, I do not mean that they should not be debated. I am simply saying that until or unless a new decision is rendered, the matters are settled law. They must be obeyed until a court states otherwise.

So yes, the government can force people to buy health insurance.

This is another reason to defeat the bill now. It will withstand constitutional scrutiny.

Trying to challenge the legality of the proposal is not the most sensible course of action for opponents.

The solution is to use the political process to either kill the bill outright, or at least strip out the worst provisions.

eric

16 Responses to “National Health Care and the Constitution”

  1. Norm says:

    Good one! I was going to leave a bit more lengthy reply but I’m being called away by my better half …headed to the hardware store…bye!

  2. Micky 2 says:

    Aoto insurance is mandatory to cover your liabilities against another party.
    The healthcare Obama wants to force on us is for personal coverage and doesnt effect anyone but you if you dont have it

  3. Micky, auto insurance is a state matter. The only federal laws regarding auto insurance haave to do wit the coverage of federal government vehicles.

    The issue of whether of any sort of universal federal healthcare or a “public option” or federally created co-ops is moot. If it was unconsitutional, then there would be no Medicare. If the people are paying the federal governement directly for it, and the federal government does not dictate to the states without recompense or recourse, then it is de facto constitutional. Period.

    The funny thing here is that one of the biggest “issues” conservatives use to bash healthcare reform is about putting linits on Torts – and that’s where unconstitutionality enters the picture. First of all, the constitution, as well as the state constitutions, guarantee the right of the people redress in the courts for civil injustice. Secondly, most Torts are STATE matters – a plaintiff is suing defendent within a state. There is no interstate involvement and therefore no federal involvement. The federal government can NOT regulate the states tort laws. Period. Now, interstate suits, like the big class action suits against big pharma, for example, that could be regulated by the federal government, but again, they are constrained by the people’s right of redress.

    So, ironically, the one thing that woud actually be unconstittuional about any healthcare reform being proposed now would be Tort “reform.” LOL! But for conservatives, the constitution is a subjectively selective matter.

    There is one more thing that may be onconstitutional as well, and that’s something that both Dems and Reps have been tossing around, and that’s federally allowing people to purchase out-of-state policies. I think that may be unconsitutional as well.

    JMJ

  4. Dav Lev says:

    Now with Soto on the Supreme Court, does anyone
    believe anyting Obama does will be declared unconstitutional?

    Or can we really believe all this has not been gone over time and time
    again behind closed doors in the administration?

    The Congress, unlike the voters passing a prop in California, does
    think these things through.

    Anyway, as a moderate conservative, I am basically against more
    government involvement in our lives., whether in health care (it
    already has medicare and medicaid), FHP (Federal employees),
    the VA, and CHIP.

    The government tends to treat we adults as if we were children.

    The IRS for example, not only arm wrestles US into behaving
    properly, but takes us out to the shed if we don’t comply ( over 3,000
    yearly get prison terms).

    They also have served millions of levies, and thousands of summons.
    not to ever forget the tens of thousands of “seizures” of homes, businesses, other assets, on a routine basis.

    I can envision the government do similarly with people who
    must buy insurance. (Those that don’t have it, or tens of millions).

    I mean is this really what we want for ourselves…don’t we have
    enough problems with medicare and medicaid AND social security?

    One thing that puzzles me, if over 30% of medical costs are
    administrative or otherwise unnecessary, why have we waited this
    long to remedy it?

    It’s like this folks, in 1973, after the Arabs broke the cease fire
    ending the 1967 War which they started ( surrounded Israel with
    100,000 Egyptian troops/Egypt, closed the Straits and with Syria formed one country with 10 divisions of Egyptian troops relocating to Syria, supplied with Russian
    Komar Missile Boats AND heavy bombers), there was an oil boycott.
    Instead of making small cars with decent gas mileage, the big
    US companies went back to their old ways..of the gas guzzlers, etc.
    Thus, in effect, opening up the market to foreign competition, which
    ultimately did them in.

    Forcing people to buy insurance..many will simply not buy.
    I mean how many people can we prosecute. California prisons
    are already facing tremendous deficitis with all the consequences.

    No, we do not want more government in our lives. We want less.

  5. summa04 says:

    Interesting article in the Washington Post dated Sat, Aug 22, 09 titled, “Illegal Health Reform,” by David Rivkin Jr. and Lee Casey http://www.washintonpost.com/wp-dyn/content/article/2009/08/21…your take gentlemen?

  6. summa04 says:

    well shoot…link picked up “your”….lawd have mercy… my bad…grrrrrr…try this: http://www.washintonpost.com/wp-dyn/content/article/2009/08/21

  7. Summa’s article points out that federally mandated individual coverage may not be constitutional. It’s a good argument. Some states can do it – like Mass – because of the nature of their state constitutions, but the federal government may not be able to mandate coverage – that is to forcably coerce individuals to pay for their individual coverage. Good point. On the other hand, the government does have the 16th Amendment – so it can levy a tax on whoever and whatever they want to pay for coverage for whomever they like. Otherwise, there’d be no VA, no Medicare, no SCHIP, etc.

    JMJ

  8. summa04 says:

    I’m attending Steny Hoyer’s Town Hall Tues eve….should be interesting to say the least. Pray I don’t get escorted any where, but ifn I do…I’ll be sure to give y’all a shout out! P.S. I know to say, “I’m peacefully assembling.” Peace out……

  9. Micky 2 says:

    I was making the point to eric that auto insurance is to protect against liabilities in case of an accident,
    am i supposed to carry healthcare in case i make “YOU” sick ?

    medicare and medicaid are voluntary. Obamas plan will be mandatory or get fined . period.

    the majority doesnt want this crap. theres proof everywhere it wont work.

    i’m on my side typing with one hand, thats why the lack in caps.
    radiation rash, big time

  10. Summa – will C-Span be there?

    Micky, unfortunately, healthcare is not a right in America. That’s a terrible thing. Most modern nations have healthcare as a right in their constitutions. But then most constitutions are relatively new, written in the 20th century. We have, if I’m not mistaken, the oldest surviving, most intact, most original consitutution, but because of that we do not have many rights that most other peoples have. It was incomprehensible in the 18th century to have universal healthcare and education because the institutions were not in place to make it so. By the twentieth century, the institutons were in place in most all the “developed” countries (and most of the “developing” ones as well) and so the constitutions written in that period reflect that.

    You say “Obama’s plan,” while no such a “plan” exists. We just don’t know what’s going to come yet. I doubt mandatory private coverage will be in the final bill and Obama would probably rather avoid it. I might not even be constitutional, which would make it moot anyway.

    Now, if you “make me sick,” I, as an American, can sue you. That has nothing to do with this debate. This is not about you paying for me – this is about all of us paying for ourselves and each other at the same time. If you have insurance now, that’s exactly what you’re doing – pooling your resources with others, betting on the odds that not all of you will get sick at the same time. But as things stand now, you have to trust that your insurance comapny will honor it’s commitments to you and put your interests ahead of their profits. Personally, I think that’s very naive. The best, fairest and cheapest possible pool would simply be everyone, with no profit from coverage other than incentives to investigate claims. If we had “single-payor” we’d all be better off. But that’s not going to happen now either. On the other hand, if we get a public option it could conceivably lead to single-payor on down the line because a public option would probably be better, cheaper and fairer than anything on the private market – just ask anyone on Medicare or in the VA. That’s why Big Insurance wants to kill the “public option,” and that’s why pols who take big Insurance money are all against it. They’ve been legally bribed. But that’s another problem in our rather antiquated republic.

    I don’t think the “majority” is against reform – it’s just that a most people are against one thing or another in it. Either it’s not enough, or it’s too much, or it’s some particular point, or they’re just morons who believe lies. In the end though, everybody needs healthcare – everybody. It’s part of life. And we all need the same level of care. All of us. It is a universal necessity. Eventually, we all get our own version of a “radiation rash.” 😉

    JMJ

  11. Micky 2 says:

    He wants to make it mandatory that you either have a private or public plan, of course an “Obama plan” exists, dont be silly.
    I never said the majority was against reform. The fact is that most “DO” want reform, just not this brand.
    Its not “too much” or ” too little”… its government intervention that most dont want.
    I cou;d write a bokk with what I’ve been thru. The present system is just too damn redundant on all ends for its own good. Interpretations and codes have reached oblivion to the point where you have ten people painting one white line, and it comes out crooked and yellow.
    Thank God I’m a diligent guy or I’d be dead. I’d still rather have this than the fed, at least I can handle these guys.
    If Obama does make personal coverage mandatory I dont see how that can be any more constitutional than requring mt kid go to public school

  12. Again, I don’t think the federal gov’t can constitutionally force people into private plans. They can, however, provide a public plan that everyone in which everyone could particpate – but that’s another thing entirely than “mandatory.” That would be like saying the government makes breathing air mandatory. I know he has suggested something like the Massachusettes plan – which is a mandatory system as you describe – but I don’t recall him ever saying it was do or die for the bill. I think he would sign a bill without it, and I don’t think he’ll have much choice. It is too politically unpallatable.

    As for the system we have now, it works to a point, but not that well – the outcomes and costs are undeniable facts that point to that conclusion – and it varies wildly from state to state. I handle my grandma’s Medicare issues and I’ll say this for certain: it’s a breeze compared to my dealings with my and my wife’s private insurance over the years. And down here in Florida the regulations are so lax, the insurance companies get away with murder. I can’t for the life of me figure out how they rate bills down here and I used to analyze corporate billing for a living! I’d take the federal gov’t over what we have now in a heartbeat. Granted, when I was in Jersey and had the Cadillac Plans I had, I was pretty happy, but I was in a small minority. Most people don’t have realistic access to the best quality Signa and Aetna plans. And I took a LOT less pay to have those plans and was only able to get them by working for foreign corporations. I never had a high quality plan working for Americans. Americans pay better, but they offer far less benefits and time off. Most Americans work for Americans, and so they just don’t have much choice – they’re stuck with whatever benefits their employer offers, and those rather chincy benefits are dwindling every day.

    The facts are clear – the system we have now costs too much, it’s overall outcomes are average at best, and the rate of inflation in the healthcare sector is completely unsustainable. Pretty soon it will be devouring a full fifth of the economy and that’s just way too much. There’s going to HAVE to be SOME kind of change, and as is always the case, someone is always unhappy with change. But there will be a change one way or the other. If not this year, then sometime soon, because what we have now is just not sustainable.

    As for public school, that’s not a federal matter. The states have guaranteed and mandatory education in their constitutions. On that subject, like Tort “reform,” once again, conservatives just don’t get it. The STATES make education mandatory – not the federal government. There is no right of education, let alone mandatory requirement, in the US Constitution or federal law.

    JMJ

  13. Micky 2 says:

    Why do you keep bringing the states into this ?
    Obamacare will be a fed matter that hes already proposed fining people(companies) for if they dont offer something. The public option will be cheaper, theres your Chicago style “deal you cant refuse”.

    I dont se why he cant just make this POS bill readable/concise, let the people vote on. Hell, we vote on gay marriage.
    The private sector is can be regulated or given guidelines. Obamas manged to impose regulations on enough crap now that I dont believe he cant regulate the private sector into a working affordable enterprise, theres a good enough foundation there to work on other than bringing in this federal clusterf*** that 57% of the country says they dont want.

    It may cost too much but its better than retail or having to pay my premiums, taxes for your public plan and then taxes on my benefits.

    Just dropped a chunk of cash on a laptop and can get a signal everywhere except my fricken bedroom.

  14. “Why do you keep bringing the states into this?”

    Because we have to, Micky. Aside from those limits imposed by the federal constitution, the states have all the power. When conservatives bring up Tort “reform” or mandatory education, they need to understand that these are mostly STATE matters. The ferderal gov’t has very little power to deal with these issues. For example, on average the federal gov’t only puts about 6% of the spending into the public schools. It’s enough to impose some federal directive, but the states have the right to refuse the money if they don’t like the quid pro quo. The same concept holds true for Medicare and many other programs. The federal gov’t offers the money, mstly in block grants, but the states, those “laboratories of Democracy,” are the primary decision-makers when it comes to how it’s spent – and they can decline the moneys if they so chose.

    you keep saying “Obamacare” and “why he” but you should of course know that “he” isn’t doing anything. He can’t. That’s not the way our constitutional republic works. It’s the job of congress to make this bill. Obama can suggest what he wants, but in the end the great sausage factory that is congress will be the ones to put it together. There are many complex issues at play here. It’s just not going to be possible to squeeze this into some small piece of legislation.

    And you keep bringing up the polls, but you forget that many of the people that are against reform are either stupid, already have gov’t coverage but are too stupid to know it, already have gov’t coverage and just have a good ol’ “I got mine so f’ you” attitude, or are against it because IT DOESN’T GO FAR ENOUGH. The vast majority still weant some kind of reform – the question is: what kind of reform?

    Now, of course, some people, like you, are just worried about expansion of gov’t power and spending. It’s a fair argument. But I don’t think it’s a majority. Given recent statistical data, there just aren’t enough conservatives out there to make a majority for that opinion.

    Try putting your wireless router up higher (I assume that’s what you’re using). Sometimes that works. If you get cable broadband, sometimes the signal can interfere with the wireless routing. Get the router above the line and it may clear it up. If you get it on a phone line, and you have a phone line also in your bedroom, then you may need to get the router up higher than the line. If the line goes above your room (through the ceiling or up high along the walls) then you might want to try putting the router lower. 😉

    JMJ

  15. Micky 2 says:

    For example, on average the federal gov’t only puts about 6% of the spending into the public schools. It’s enough to impose some federal directive,”

    Yeah but this healthcare billis going to supported by a federal tax thereby will be dictated by the fed.
    I dont see how the states are going to have all that much to say about otherwise you’d be hearing from conservative states who think they could actually be exempted.

    I’m not just worried about government expansion. I’m worried about ten other things that run with this crap. Taxes, loss of relationship with docs, my sons future, eugenics(rationing) loss of privacy, the level of care folks will get, our seniors, vets, revenues transfers from other programs that will effect us and a slew of issues
    The problem for you guys is that the 57% rejecting this is not made up of conservatives.Independents, and liberals with buyers remorese, loyal liberals who just dont like it, conservative liberals makeup the majority.
    If he doesget anything it wont be what he wants, trust me.
    I have no router yet but when Idid try the ethernet cable the laptop kept asking me if I want a dial up connection. I think somehow the ethernet jack is disabled. I just got the damn thing, its a whole new exprience, I’m stealing unsecure signals right now. When I’m mobile I’ll go to Best Buy and pick up all my bells and whistles.
    Right now I feel like I’ve been violated by an elephant.

    “you keep saying “Obamacare” and “why he” but you should of course know that “he” isn’t doing anything. He can’t. That’s not the way our constitutional republic works. It’s the job of congress to make this bill.”

    Gimme a break.
    Many CICs have put their names on bills that congress put together.
    This is Obamas legacy, he has to have it come hell or high water.

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