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August 22, 2009

The Liberal Addiction to Federal Encroachment on our Freedoms

... apparently, everything is commerce now. Even insurance:

Rivkin and Casey think that a federal requirement that uninsured individuals must purchase health insurance can't be within Congress's commerce power because when ordinary individuals don't purchase health insurance, their mere failure to do so has no effects (economic or otherwise) on interstate commerce.

...Got it? When people don't buy things, by definition it doesn't affect commerce! (For example, during recessions people stop buying things and everyone knows that has no economic effects.)

Ergo... what? Do we really want to cede the federal government Commerce Clause power to force us to buy things on the grounds that our failure to purchase items "effects" interstate commerce?

Good God. I may not be an attorney but even I see the problems inherent in such an extraConstitutional power grab. I refer you to Justice Thomas' dissent in Gonzalez v. Raich. Few things in life were most amusing than watching progressive heads explode at a truly principled application of judicial philosophy which contradicted their view of what a conservative "ought" to think:


Under the Commerce Clause, Congress may regulate interstate commerce, not activities that substantially affect interstate commerce–any more than Congress may regulate activities that do not fall within, but that affect, the subjects of its other Article I powers. Whatever additional latitude the Necessary and Proper Clause affords… the question is whether Congress’ legislation is essential to the regulation of interstate commerce itself–not whether the legislation extends only to economic activities that substantially affect interstate commerce.

…The majority’s rewriting of the Commerce Clause seems to be rooted in the belief that, unless the Commerce Clause covers the entire web of human activity, Congress will be left powerless to regulate the national economy effectively. The interconnectedness of economic activity is not a modern phenomenon unfamiliar to the Framers. Moreover, the Framers understood what the majority does not appear to fully appreciate: There is a danger to concentrating too much, as well as too little, power in the Federal Government. This Court has carefully avoided stripping Congress of its ability to regulate interstate commerce, but it has casually allowed the Federal Government to strip States of their ability to regulate intrastate commerce–not to mention a host of local activities, like mere drug possession, that are not commercial.

One searches the Court’s opinion in vain for any hint of what aspect of American life is reserved to the States. Yet this Court knows that “ ‘[t]he Constitution created a Federal Government of limited powers.’ That is why today’s decision will add no measure of stability to our Commerce Clause jurisprudence: This Court is willing neither to enforce limits on federal power, nor to declare the Tenth Amendment a dead letter. If stability is possible, it is only by discarding the stand-alone substantial effects test and revisiting our definition of “Commerce among the several States.” Congress may regulate interstate commerce–not things that affect it, even when summed together, unless truly “necessary and proper” to regulating interstate commerce.

Sometimes it really is that simple.

Note: Thanks to Drew's comment, I deleted my note regarding 'effects vs. affects'. Apparently I need to either learn to read more carefully (you would think the 's' would have caught my attention) or pass up the attempts to be a smart ass.

Posted by Cassandra at August 22, 2009 04:55 PM

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Comments

Okay, I basically think Obama is a lightweight who's in way over his head but let's assume someone somewhere on the Democratic side of health care is capable of being Machiavellian:

The Dems give up on the public option and instead pass a bill that - among other things - requires health insurance companies to provide insurance to all comers without pre-existing conditions exclusions and with community rating. It also mandates that everyone buy insurance. It's signed into law. The mandate provision is found un Constitutional. The insurance companies, required to take everyone on but with no leavening by the young and healthy have to jack premiums way, way up. (See NJ for an example.)

How long will it take before everyone who has private insurance is begging the Feds to take over providing health care?

Posted by: Elise at August 22, 2009 06:30 PM

"How long will it take before everyone who has private insurance is begging the Feds to take over providing health care?"
Probably just about a week or two before there is a nation-wide run on railroad crossties, roofing tar, bales of feathers, and possibly kitchen matches.

Posted by: bthun at August 22, 2009 07:22 PM

In the vein of Liberal encroachment, George Will and Teddy Kennedy shine a little light on this matter. In their own ways of course.

Posted by: bthun at August 22, 2009 07:26 PM

What I find so amusing about this, Elise, is that we had NO health insurance the first few years we were married.

We also were well below the federal poverty line for a family of three. During that time we paid for prenatal care for me and my delivery. By check.

We paid for what we could afford. No bells, no whistles. And you know, my obstetrician didn't give me a price break b/c we had no money. Neither did the hospital.

My son's pediatrician, on the other hand, only charged me $10 an office visit and gave me samples when he had to write a prescription.

I never had a postpartum follow up visit after giving birth to both my sons. Couldn't afford it.

I see no need for a soup-to-nuts health care plan that is NOT insurance (insurance spreads the risk of catastrophic events - when it starts to cover checkups, it ain't "insurance").

Posted by: Cassandra at August 22, 2009 09:14 PM

There's pretty much zero chance these days of the courts overturning any regulation of anything that even remotely resembles the exchange of cash. But for rhetorical effect, though, you're right that it's still helpful to point out these blatant constitutional violations.

And I think "affect" is the verb form of "effect."

Posted by: Drew at August 23, 2009 12:02 AM

Sadly Drew, I agree with you regarding the courts.

Oh, and thanks for the heads up regarding "affect".

I scanned his post too quickly and for whatever reason, what I read was "...when ordinary individuals don't purchase health insurance, their mere failure to do so does not effect interstate commerce"

The "s" on the end, in any case, should have been a huge clue. That's what I get for being snotty when there was really no reason to do so. I appreciate the heads up - sometimes blogging is too much of a drive-by occupation.

Posted by: Cassandra at August 23, 2009 01:17 AM

FWIW, the reason the two words are so often confused (other than by overtired bloggers :p) is that either of them can be used as either a noun or verb, though some uses are not common.

For instance, there are common uses:

1.VERB Benadryl affects my ability to stay awake while driving.

2.NOUN Some of the side effects of Benadryl are sleepiness and dry mouth.

Less common uses:

1. NOUN Joe's lack of affect made the cop he was hiding something.

2. VERB Six months into his first term, voters are beginning to doubt whether Obama can effect the changes he promised them.

Posted by: Cassandra at August 23, 2009 01:34 AM

the words "affect" and "effect" are both nouns and verbs ...

Posted by: I Call BS at August 23, 2009 01:36 AM

Joe's lack of affect made the cop SUSPECT that he was hiding something.

BTW - "suspect" is also a noun and a verb - once it starts, there's no end to it!

Posted by: I Call BS at August 23, 2009 01:38 AM

Thanks :)

I am really out of it today. I always get this way when I'm getting a migraine. My speech sometimes gets all messed up, too. Not sure why that happens.

Probably wasn't a good day for me to try to write.

Posted by: Cassandra at August 23, 2009 01:55 AM

I see no need for a soup-to-nuts health care plan that is NOT insurance (insurance spreads the risk of catastrophic events - when it starts to cover checkups, it ain't "insurance").

I started writing about this and it got so long and so off topic I put it up as a post at my own blog.

Posted by: Elise at August 23, 2009 01:42 PM

You have really done a fantastic job on covering the health care initiatives Elise. I will check out your post first thing in the morning.

I did not want to get into the intricacies of the various bills too early b/c I figured everything would change at the last minute - it always does - and I don't have the time to do a thorough job. That's why I never weighed in on the whole "death panels" controversy - I couldn't have summoned an informed opinion.

My gut feel on a lot of this is that it's a lot like the primaries - it matters (b/c the debate determines what Congress will vote on) but I usually do better waiting until there's a more clear cut set of choices on the table. So I'm grateful when someone is willing to wade into the sausage factory :p

Posted by: Cassandra at August 23, 2009 07:25 PM

Elise puts some things in perspective... but not all. What I keep wondering about is where is the definitive point that healthcare becomes a luxury, not a need?

The luxury/need conundrum is relative to housing as well.

Posted by: Donna B. at August 24, 2009 05:03 AM

IMHO, Medical services that address serious injuries, chronic, life threatening, or debilitating problems are a need. Lesser health issues may enter into the realm of need, but may not require immediate or on-going care.

The question is who should pay for the need and how.

Should an assist be rendered to those in need with no ability to help themselves? Again it just my opinion, but I say absolutely. I personally believe that assists to those in need are a duty placed before those who have the means to assist. I think the hierarchy for help is pretty much is as it should be. That is family, friends, churches, charities, professional organization and finally, as a last resort, the government.

Does that mean that once someone is given an assist and an opportunity to do for themselves, given that they are physically/mentally able and are in a state of restored health, that they can instead choose to milk the generosity of others indefinitely? Heck no. None but those in government subscribe to that mode of operation. But then none but those in the government have the power to confiscate from others to service their generosity.

So again, the question is, should elected non-representatives and bureaucrats be able to legislate a moral obligation to provide an ill-defined, ever expanding burden of increasing taxation and diminishing care over the objections of the majority?

The burden of costs and reduced benefit will be administered by the government and their bureaucrats. It will be applied to that same majority as the program grows to kill private insurance and personal responsibility. This will be done in order to [truth be told, increase government power and control] care for multitudes, who not so much can not but will not act responsibly, with regard to their health along with their general behavior and their personal finances.

As so many have pointed out, anyone can get health care, especially critical care at any hospital emergency room. At least in those surviving hospitals who have not yet gone broke servicing the indigent, illegal immigrant, and irresponsible communities.

My nickels worth

Posted by: bthun at August 24, 2009 09:19 AM

I wonder if a Wyden-Bennett type setup would work around the Constitutional issue. W-B would be a Federal law but would set up States entities to run the program. Interesting question.

My problem with the health care issue is that I can see almost every side. My reaction to almost everything I read about this - from single-payer to Cassandra to what bt just said to Grim to whatever - is "yes, but". The relative size of the "yes" and the "but" (no cracks, I just started a diet) vary depending on the proposal. So I've backed off from the sausage making investigation - although I may write posts about W-B and about single-payer later in the week - and am trying to just lay out thoughts. I'm hoping at some point they'll coalesce and I can yell, "Eureka!"

If I think about this is terms of extremes, I think that there is no way a working poor family in NJ can afford health insurance nor afford to pay for, say, breast cancer treatment and I simply can't make myself believe it is therefore okay for them to do without. At the other extreme, I'm not willing to be taxed to pay for someone else's facelift and I'm not all that crazy about paying for someone else's cosmetic orthodontia - or chiropractic intervention if it comes to that. Which then brings us around to rationing - once health care is provided by the government (read "taxpayers") someone has to decide what is and is not "health care". It's not going to be doctors and patients because, hey, botox injections look like health care to them. So, hello, government panel who will probably decide that at least one thing I think is health care isn't important enough to pay for.

Maybe we need a dual system. People who truly don't want any government involvement in their health care can opt out of everything: Medicare, Medicaid, SCHIP, walk-in ER visits. They don't pay for it via taxes and they don't get benefits - and they can't opt back in later. I'd be very interested to see how many people would be wiling to totally opt out.

Posted by: Elise at August 24, 2009 10:39 AM

Oops. Should have read "walk-in ER visits without having to pay."

Posted by: Elise at August 24, 2009 10:59 AM

"Oops. Should have read "walk-in ER visits without having to pay.""
Elise, I'd venture a guess that most folks, ok maybe not most, but most that I know, who do have a need to visit an emergency room pay for the services rendered via their private insurance or from personal assets.

My last visit resulted from allowing myself to be distracted and sending a 16 penny nail though my forearm. Don't ask. After delivering a small, impromptu speech, courtesy of my training in the USN Toastmasters guild, I did not think much more of it. It seemed to be a fairly clean "flesh wound" as is said. But within about 12 hours (about midnight) I had a swollen forearm that Popeye would have envied.

So at the insistence of Walkin' Boss, off to the ER we go.

After waiting for a couple of hours to take my turn amongst the visitors from south of the border, I had to present my insurance credentials and a credit card to be given a tetanus shot.

I think I was profiled!

Posted by: bthun at August 24, 2009 04:42 PM

Elise, I'd venture a guess that most folks, ok maybe not most, but most that I know, who do have a need to visit an emergency room pay for the services rendered via their private insurance or from personal assets.

Yup. I went with my brother when he put a very similar nail through his finger. It was pretty funny to walk out onto the porch and find my brother and my husband looking so guilty. I thought they were telling dirty jokes or something until I realized that drip, drip, drip was my brother's blood. He had insurance. So do I. So does everybody I know.

Anyhow, my point was that since there are people who want to be on their own with regard to health care and people who want the government to do it all, maybe we need to find a way to accommodate both groups. Single-payer for those who want all government all the time; no government interference or assistance - and no tax burden - for those who want to go it alone. And our current system for people like me who stand in the middle, hopelessly confused.

I've got up, yes, yet another post, called "Pick your poison" where I try to be clearer about this.

Posted by: Elise at August 24, 2009 04:55 PM

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