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UNDERNEWS

Undernews is the online report of the Progressive Review, edited by Sam Smith, who covered Washington during all or part of one quarter of America's presidencies and edited alternative journals since 1964. The Review, which has been on the web since 1995, is now published from Freeport, Maine. See main page for full contents

August 22, 2009

FEDERAL HEALTH CARE MANDATE UNCONSTITUTIONAL?

David B. Rivkin Jr. & Lee A. Casey, Washington Post - Consider one element [of the pending health plan] known as the "individual mandate," which would require every American to have health insurance, if not through an employer then by individual purchase. This requirement would particularly affect young adults, who often choose to save the expense and go without coverage. Without the young to subsidize the old, a comprehensive national health system will not work. But can Congress require every American to buy health insurance? In short, no. The Constitution assigns only limited, enumerated powers to Congress and none, including the power to regulate interstate commerce or to impose taxes, would support a federal mandate requiring anyone who is otherwise without health insurance to buy it. Although the Supreme Court has interpreted Congress's commerce power expansively, this type of mandate would not pass muster even under the most aggressive commerce clause cases.

10 Comments:

Anonymous Mairead said...

Somebody seems to be out of touch with reality. There are many, many laws that violate our Constitutional rights but are nevertheless being enforced against us. The egregiously-misnamed "PATRIOT Act" being probably the worst.

Perhaps unintentionally -though I doubt it- the Bill Of Rights, added only to save ratification, has no teeth.

There's no provision saying that someone who tries to create a law that violates our rights will automatically go directly to jail without passing Go and not only not collect $200 but lose his job, pension, and the right to hold public office.

There's not even a provision that says the Courts will wag a finger and say "naughty naughty".

Jefferson predicted (it's in his notebook) that we would ignore the nibbling-away of our rights for a long time before waking up, and that we would have so few left by the time we pulled our fingers out that the only recourse left us would be a "convulsion"--which might not work.

Are we there yet?

August 23, 2009 7:27 AM  
Anonymous Anonymous said...

I wonder if overturning the mandate would be supported by the right wing Supreme court? It is certainly unconstitutional and overturning it would sink the Obama plan so one may think they would jump at the chance. But on the other hand the powerful insurance industry would love the mandate. It gives them the power of taxation in all but name - pay or be jailed or otherwise punished.

My guess is the Supreme court would rule for the powerful insurance corporations and let the mandates stand. The Supreme court doesn't operate by any detectable principles except one: It unflinchingly rules for the powerful against the weak.

I suppose what would happen in practice is every conceivable legal and barely legal roadblock would be thrown in the path of any challenge even getting to the Supreme court until it disappears due to lack of funds, time, and exhaustion.

August 23, 2009 10:20 AM  
Anonymous Anonymous said...

Did anything happen when the Supreme Court decided to issue a ruling that contradicted all of its previous rulings on the subject (even by the same Justices), carefully labeling that decision "not a precedent for any future cases"? No.

They were allowed to get away with appointing someone President with no Constitutional justification whatsoever, even when there were clear personal and political conflicts of interest that should have caused several members, particularly Scalia, to recuse themselves.

The framers had no idea that human life spans would become so long that Justices would remain on the court far beyond their ability to think for themselves or stay in touch with current realities. They naively believed that Congress would always be responsive to the people and follow through with immediate impeachments any time the courts or the President overstepped their bounds. As a result they created a body with the last word on everything that happens in America, and this body has no checks or balances on it whatsoever. When the Supreme Court goes rogue, there is no higher power to take them down.

August 23, 2009 10:57 AM  
Anonymous Anonymous said...

As I recall some years ago a judge named Bork was nominated for the Supreme Court. He was roundly dismissed by all except the nominator. One of Bork's great transgressions was that he said that the Federal Government had morphed from one of "enumerated powers" to one of "plenary powers." Bork was ridiculed by the cognoscenti as being antediluvian. Whence the current state of affairs. Sic transit gloria mundi.

August 23, 2009 11:33 AM  
Anonymous Anonymous said...

Since when have our masters been bound by the Constitution?

August 23, 2009 12:23 PM  
Anonymous robbie said...

David Rivkin?? uh....no

August 23, 2009 12:30 PM  
Anonymous Anonymous said...

Those who rail about the founders desire to keep power under control always seem to forget one thing: the original Constitution (plus the Bill of Rights) was carefully designed to keep 100% of the power in the hands of white, male, landowners over the age of 21. There's not that big a difference between that system and our current one in which billionaires in general hold all the power.

August 23, 2009 1:22 PM  
Anonymous Mairead said...

"the original Constitution (plus the Bill of Rights) was carefully designed to keep 100% of the power in the hands of white, male, landowners over the age of 21."

Precisely. It was Madison, perhaps the most intelligent of the three Federalist Papers propagandists, who frankly stated that the job of government is to protect wealth and privilege, and that, if he could have done so safely, he would have prevented us proles from having any say in the federal government at all.

August 23, 2009 3:38 PM  
Anonymous cabdriver said...

Up until not very long ago, I was convinced that single-payer health insurance was the way to go.

Nowadays, I'm not so sure.

This has to do with my exposure to another version of health care reform: the notion of relegating the role of health insurance- whether offered privately, or by the government- to covering only the most serious and expensive procedures and associated costs, like hospitalization.

Under this alternative, the rest of medical coverage would revert to fee for service, paid by the individual. That would have several benefits, both for patients and their health care providers: it would provide for competition by private practices, HMOs, and clinics to lower costs; dispense with the paperwork demanded by middlemen who for the most part do nothing more than act as a billing service; and keep medical disclosures within the exclusive purview of patients and their physicians, instead of collating what many people view as their most private data- their medical records- in a central data base (whether administered by a huge private health insurance corporation, or by the Federal government.)

Fact: even under the current system, physicians typically charge much less for cash visits or lab tests than they would bill an insurance company, for the exact same work. And at least some physicians with private practices and the ability to set their own fees are willing to negotiate lower fees with patients having a low income, or limited means.

This method of health reform would use insurance companies to cover patients only for the costs that are far beyond the ability of people of ordinary means to pay out of their own pockets.

It's a somewhat more libertarian approach, and I'm not one of those who considers "libertarian" to be a dirty word, or who finds every approach associated with libertarian principles to be worthless.

Fact: I'm a low-income person who takes care of myself. Over the 30-off years of my adulthood, I've only rarely required doctor visits, medical tests, procedures, or prescriptions.

If I had saved the amount of money that went toward annual medical insurance plans- all of which entailed co-payment, and high deductibles for major medical expenses- like $2500 or $5000 out of pocket- that would have sunk me financially even with "coverage", if I had ever required them- and instead simply paid all of the doctors and labs in cash for their work with cash I had set aside in savings, I'd be ahead many thousands of dollars. Too many thousands of dollars for me to want to think about, in retrospect.

These days, my insurance expenses run more than $3000 per year. I haven't had a single medical visit in a year, except for a dental visit to re-cement a crown, for which I paid a reasonable sum in cash to a dental clinic. I only keep that insurance around to guard against the risk of having something really serious happen to me. And even at that, it would do an inadequate job of preserving me from financial hardship if I ever required that level of care.

Personally, I don't require cradle to grave health insurance from the government that picks up the tab for every trivial medical issue I may have. I don't like the prospect of handing my medical records over to the government, either.

I need something that's going to ensure that I get the best possible care if I develop a serious medical condition or chronic disease snydrome. And as much as possible, for the rest of it, I want the bureaucracy out of the way.

And I'm increasingly viewing the opposition of a taxpayer-funded "single payer" system vs. the "private" plans of the medical insurance corporations as a false choice.

August 23, 2009 4:28 PM  
Anonymous Anonymous said...

It has long been understood that Congress has no power to regulate
the practice of medicine within the States; see Linder v. United States, 268
U.S. 5, 18, 45 S.Ct. 446 (1925)("Obviously, direct control of medical
practice in the states is beyond the power of the federal government."). See
also United States v. Anthony, 15 F.Supp. 553, 555 (S.D.Cal. 1936)(quoting
Linder); Du Vall v. Board of Medical Examiners, 49 Ariz. 329, 335, 66
P.2d 1026 (1937)(“The Congress, under the federal Constitution, has * *
* not delegated to the United States the power * * * to regulate the practice
of medicine.”); United States v. Evers, 453 F.Supp. 1141, 1150 (M.D.Ala.
1978)(chelation case quoting Linder); Metrolina Fam. Prac. Group v.
Sullivan, 767 F. Supp. 1314, 1321 (W.D.N.C. 1989); Conant v. Walters,
309 F.3d 629, 639 (9th Cir. 2002)(quoting Linder); United States v. Singh,
390 F.3d 168, 189-90 (2nd Cir. 2004); and Oregon v. Ashcroft, 368 F.3d
1118, 1124 (9th Cir. 2004)(“The principle that state governments bear the
primary responsibility for evaluating physician assisted suicide follows
from our concept of federalism, which requires that state lawmakers, not
the federal government, are ‘the primary regulators of professional
[medical] conduct.’ Conant v. Walters, 309 F.3d 629, 639 (9th Cir. 2002);
see also Glucksberg, 521 U.S. at 737, 117 S.Ct. 2258 (O'Connor, J.,
concurring). The Supreme Court has made the constitutional principle
clear: ‘Obviously, direct control of medical practice in the states is beyond
the power of the federal government.’ Linder v. United States, 268 U.S. 5,
18, 45 S.Ct. 446, 69 L.Ed. 819 (1925); see also Barsky v. Bd. of Regents,
347 U.S. 442, 449, 74 S.Ct. 650, 98 L.Ed. 829 (1954) (‘It is elemental that
a state has broad power to establish and enforce standards of conduct
within its borders relative to the health of everyone there. It is a vital part
of a state's police power.’). The Attorney General ‘may not . . . regulate
[the doctor-patient] relationship to advance federal policy.’").

November 16, 2009 9:22 AM  

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