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Argument 2: Congress does not have the power to require states to establish insurance exchanges because it would violate the 10th Amendment.

Several opponents of the new health reform law have been pinning their hopes on the 10th Amendment, which states that:

The powers not delegated [emphasis added] to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

It is descended from an earlier provision in the Articles of Confederation, our nation’s first Constitution, which read:

Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated [emphasis added] to the United States, in Congress assembled.

Notice the key difference between these clauses.  The 10th Amendment no longer contained the word "expressly".  By not requiring powers to be expressly delegated to the federal government, the Constitution allows for implied powers.  They don’t all have to be listed.  So the health care reform is an implied power related to the enumerated power to provide for the "General Welfare".  This leads us to the next argument.

Argument 3: The General Welfare Clause has to be interpreted too broadly to include Health Care Reform.

Article 1 Section 8 contains the list of enumerated powers, powers explicitly granted to the Congress, the last of which, Clause 18, being The Necessary and Proper Clause (also known as the Elastic Clause).

The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

In other words, Congress can make laws to ensure that the things in the list happen.  One of those items on the list is Article 1 Section 8 Clause 1, the General Welfare Clause:

The Congress shall have power - To lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare [emphasis added] of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

What does "General Welfare" mean?  To Thomas Jefferson, James Madison, and other Anti-federalists, providing for the general welfare meant the general welfare of the government, for the explicitly named powers it had been given in Article 1 Section 8.  Jefferson stated that "the laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised.  They [(Congress)] are not to lay taxes [at their pleasure] for any purpose they please; but only to pay the debts or provide for the welfare of the Union."

To Alexander Hamilton, George Washington and other Federalists, providing for the general welfare had a much broader meaning.  From the viewpoint of the Federalists, it meant that Congress could, through enumerated or implied powers, lay taxes to provide for any program that benefited the nation as a whole.  So long as it benefited the nation in general and not a particular state or region.  "General welfare", in essence, meant the "common good".

Who was right?  Well, oddly enough, when the phrase "provide for the common defence and general welfare" was added to the Constitution at the Philadelphia Convention, it was approved unanimously and without debate!  During the early years of the Republic, there were many fights over that simple phrase and the government went back and forth from broad to strict construction of the term, depending on who was in power.

It wasn’t until 1936, with United States v. Butler, that the Supreme Court finally weighed in on the subject and came down on the side of Broad Construction.  As it stands, the General Welfare is, to quote Associate Justice Joseph Story’s 1833 "Commentaries on the Constitution of the United States":

The true test is whether the object be of a local character and local use or whether it be of general benefit to the States.  If it be purely local Congress cannot constitutionally appropriate money for the object.  But if the benefit be general it matters not whether in point of locality it be in one State or several whether it be of large or of small extent its nature and character determine the right and Congress may appropriate money in aid of it for it is then in a just sense for the general welfare.

So, in this installment, I’ve tried to lay out the case for why the 10th Amendment does not restrict the power of Congress with regards to implied powers related to the General Welfare Clause and that the Broad Construction of that clause allows for attempts to improve the common good like Health Care Reform.

Next up, arguments that the new law is a violation of the Commerce Clause.

Originally posted to Carl Ray on Wed Apr 14, 2010 at 10:36 PM PDT.

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Comment Preferences

  •  One thing to mention (0+ / 0-)

    is that general welfare, as a constitutional term, will likely be found to define a set of circumstances, the most important is PUBLIC ENTITLEMENT, which this HCR bill does not provide.

    I think that the Teabagger, anti-HCR premise is obviously flawed, but as this bill provides no governmentally administered infrastructure (aside from subtle regulation, which is not constitutionally, a public entitlement), it is quite possible to argue against its constitutionality only with regard to the mandate.

    "From each according to his faculties; to each according to his needs" - M. Bakunin

    by DJamesGoodwin on Wed Apr 14, 2010 at 11:07:10 PM PDT

    •  I agree (1+ / 0-)
      Recommended by:

      The best chance for overturning (really the only chance) is the Commerce Clause.  There is precedent dating back to 1792 (I think) when the government required some people to buy guns and during the Adams Administration, sailors were required to buy insurance.  However, since the Rehnquist Court, there's been a trend towards a stricter construction of the Commerce Clause in some cases and with the recent Citizens United case that threw a century of precedent out the window, who knows what this court might rule.

  •  Are you going to get to the individual mandate? (1+ / 0-)
    Recommended by:

    That's the only challenge to this law that I think has an outside chance. If you do, it would also be interesting to query what would happen to the law as a whole if just that provision was struck.

    •  Yes (2+ / 0-)

      The individual mandate is coming up as part of the next piece.  I saw something about it at HuffPost the other day where the writer was contending that there wasn't really a mandate at all.  Here's the link:

      •  The poster at Huffpo (0+ / 0-)

        outlines some of the issues that will be fought at trial. There are good arguments as to why the Constitution does not allow for a tax that's a penalty and that the Commerce Clause cannot be used to justify regulating inactivity. But those are for the courts to decide and I hope you do a better job than he does of laying out the arguments.

      •  In looking at the individual mandate, (0+ / 0-)

        I hope that you will give due consideration to the question of whether an actual case or controversy exists in these State AG lawsuits.  It strikes me that the State AGs lack standing to challenge the individual mandate, as it will not go into effect until 2014.

        The GOP -- seeing that government by the corporate interests, for the corporate interests and of the corporate interests shall not perish from this earth.

        by Its the Supreme Court Stupid on Thu Apr 15, 2010 at 07:00:43 AM PDT

        [ Parent ]

    •  If the individual mandate was struck down... (1+ / 0-)
      Recommended by:

      which I think the court will find that there are sufficient alternatives to the mandate that it is effectively a choice and not a mandate then the law would simply change to say you want pre-existing conditions protection, keep your coverage, otherwise you are SOL...

      NJ has no mandate, but if you let your coverage lapse for more than 63 days there is a waiting period and pre-existing conditions exclusions.  If you keep your coverage current then there is no medical underwriting and no pre-existing conditions exclusions or waiting periods...

      Carrot meet Stick...

      Obama - Change I still believe in

      by dvogel001 on Thu Apr 15, 2010 at 03:27:59 AM PDT

      [ Parent ]

      •  Whaddaya mean . . . (0+ / 0-)

        . . . "the law would simply change"? Is there a provision in the law that provides for that? If not, why do you think such a change would get past a filibuster?

        •  Is there a severability clause? (0+ / 0-)

          I haven't looked, but often complex laws like this have a provision that says if any portion of the law is found unconstitutional, the rest of the law nevertheless remains in effect.

          "[W]e shall see the reign of witches pass over . . . and the people, recovering their true spirit, restore their government to its true principles." Jefferson

          by RenMin on Thu Apr 15, 2010 at 06:46:33 AM PDT

          [ Parent ]

          •  I don't know either (0+ / 0-)

            but I think I've read that there is not, and I wouldn't be surprised given that several of the provisions were entirely interdependent on others, in particular the individual mandate and the ban on pre-existing conditions discrimination.

            •  The well to do get insurance they couldnt buy (0+ / 0-)

              for any price before, so after 2014, it wont be completely "impossible" for people with pre-existing conditions to get decent insurance - Its just going to remain obscenely expensive.. and the cost is going to continue to rise. and affordability decline. Its not sustainable, but it does pass their purity test.

              Its a free market solution- Its going to cost so much that many tens of millions of people who thought they were getting help, millions who need it wont be able to afford it.. Obama's giveaway probably wont be implemented in 2014, but regardless of whether he does, even if he loses in 2014 (likely) the election victory of 2008's problem is solved, and he keeps the dysfunctional system going at least a few years longer.. But at a huge cost..

              Its basically going to be an expansion of the high risk pool concept..nationally..

              As the state high risk pools say..

              Risk pool insurance generally costs more than regular individual insurance, but the premiums are capped by law in each state to protect the individual from exorbitant costs. The caps range from as low as 125 percent of the average for comparable private coverage in some states, up to 200 percent of the average or more in other states. Most states offer coverage at less than 150 percent of the average.

              All state risk pools inherently lose money and need to be subsidized. While the individuals in risk pools pay somewhat higher premiums, roughly 50 percent of overall operating costs need to be subsidized. Subsidy mechanisms also vary from state to state -- some states assess all insurance carriers, HMO's and other insurance providers; others provide an appropriation from state general tax revenue; some states share funding of loss subsidies with the insurance industry using an assessment of insurance carriers and providing them a tax credit for the assessment, or other states have a special funding source, such as a tobacco tax, or a hospital or health care provider surcharge.

              It is important to note that risk pools are not created expressly to serve the indigent or poor who cannot afford health insurance. Risk pools are designed to serve people who would not otherwise have the right to purchase health insurance protection. The indigent can access coverage through state medical assistance, Medicaid or similar programs. However, some state risk pools do have a subsidy for lower income, medically uninsurable people.

              We need a national healthcare PLAN. Not a national healthcare capitulation.

              by Andiamo on Thu Apr 15, 2010 at 06:15:04 PM PDT

              [ Parent ]

        •  All legislation of this magnitude... (0+ / 0-)

          has a clause that says if one part of the bill is found to be unconstitutional the bill is still law...

          So my guess is plan B would be to use the Carrot/Stick approach...

          Obama - Change I still believe in

          by dvogel001 on Thu Apr 15, 2010 at 09:22:37 AM PDT

          [ Parent ]

      •  This is what they should have done (0+ / 0-)

        in the first place.  Not that I think there's any serious constitutional challenge, but this would have eliminated any question whatsoever.  Moreover, it would have been more palatable politically, as the Republicans would lose the "assault on liberty" talking point -- it would be purely voluntary, but at a price.

        "[W]e shall see the reign of witches pass over . . . and the people, recovering their true spirit, restore their government to its true principles." Jefferson

        by RenMin on Thu Apr 15, 2010 at 06:43:10 AM PDT

        [ Parent ]

        •  Pre existing conditions protections on individual (0+ / 0-)

          plans wont be affordable for 95% of Americans because those individual plans cost typically three or four times what group plans cost, so they are completely unaffordable for normal people.

          For example, here are the 2008 premiums in New York per month.

             HMO. Health benefits are covered if the member uses providers that are in-network.

             All New York HMOs also offer a point of service (POS) option that allows members to seek care from providers that are out-of-network. Services provided by out-of-network providers generally cost members more in out-of-pocket expenses.



            Premium Rates for Standard Individual Health Plans

             April 2009

             New York County

             Monthly family premium rates for Point of Service Plans (POS)

             $4450 – Aetna Health. Inc.
             $3776 – Atlantis Health Plan, Inc.
             $4066 – Empire BlueCross BlueShield HMO
             $6824 – GHI HMO Select, Inc.
             $4187 – Health Insurance Plan of Greater New York, Inc.
             $3816 – Health Net of New York, Inc.
             $3500 – Managed Health, Inc.
             $4208 – Oxford Health Plans (NY), Inc.

             HMO family rates for these same insurers range from $2266 to $5686


          So in New York County, for a premium of about $50,000 per year, you can have a choice of physicians and hospitals for your family, although you will have to pay more in out-of-pocket expenses if you select out-of-network providers. If you don’t mind losing choice by staying within the HMO for all of your care, you can have your family covered for under $40,000 per year.

          What is going on here? Why are the premiums so high?

          We need a national healthcare PLAN. Not a national healthcare capitulation.

          by Andiamo on Thu Apr 15, 2010 at 08:03:31 AM PDT

          [ Parent ]

          •  Here are the plans I found on (0+ / 0-)

   for zip code 10019 (Manhattan)  for a family of 4 individual coverage...


            Here is NJ where I live...


            Obama - Change I still believe in

            by dvogel001 on Thu Apr 15, 2010 at 09:34:04 AM PDT

            [ Parent ]

            •  Quality - very important if you ever get sick. (0+ / 0-)

              New York State plans meet minimal standards for quality

              We need a national healthcare PLAN. Not a national healthcare capitulation.

              by Andiamo on Thu Apr 15, 2010 at 11:23:56 AM PDT

              [ Parent ]

              •  All of the NJ plans I cited... (0+ / 0-)

                are approved by the State Board and meet quality standards...

                Remember, that is where subsidies come into play anyway...

                Will health insurance be affordable to everyone...I have conceded that point many times...but helping 32 million who by definition it will be affordable because they will purchase it is a great achievement...not perfect change...but good change...

                Obama - Change I still believe in

                by dvogel001 on Thu Apr 15, 2010 at 12:04:20 PM PDT

                [ Parent ]

                •  Where do you get a 32 million figure? (0+ / 0-)

                  Only a few of those who will be "offered" insurance will be able to afford it!

                  Thats the problem, its going to be really expensive. It wont have any way around that. Nobody is donating money to change that..

                  Look at COBRA.. Even solidly middle class workers when laid off can't afford it.. And that is group insurance.. not individual.

                  Only 17% can afford unsubsidized COBRA, when its subsidized at 65% that amount rises to around 35%

                  Lots of people want it, but they can't afford that money..

                  Also, obviously, COBRA which is group, not individual coverage is probably much cheaper for many people than an post 2014 individual plan through the individual exchanges. Premiums for individual plans are much higher..

                  Say 32 million (its probably FAR more than that- of course) have pre-existing conditions..and are uninsured.. Now its impossible for them to buy individual insurance at ANY price..

                  Suppose tomorrow, that changes.. the new policies will cost, say $1500 to $4500 a month.  or even $1000 to $3000 a month.. how many will buy them? how many CAN, and how many WILL?

                  Not many at all..

                   Most people want insurance, but they can't afford its unsubsidized cost. But most people are not going to get subsidies, and many who will, wont get very large subsidies, at most, maybe a few thousand dollars a year, against a cost of much more.. for an older person, I think we'll be looking at huge sums.. Remember that 300% ratio..

                  The break-even amount for a plan thats managed by insurance companies, (required, probably by WTO imperative to privatize everything) is going to be high.. very high..

                  Add to that the imperative to not undercut for profit insurers.. the probable sick risk pool (like the state high risk pools) and the fact that there still wont be any cost control here in the US, (but every other nation has them - which means multinationals, like drug companies shift their costs to us)

                  Those policies are going to start out expensive and as people find they can't handle the cost- get more so as healthy people drop out and take the fine or leave the country..

                  Only sick people would consider that even potentially a decent deal which would I think doom it via the aptly named "death spiral" effect.

                  Costs..  Waste.. Adverse selection/Sicker Risk pool.. Lack of ERISA escape clause.. Lack of healthy worker effect.. Number of

                  Desire to maintain a job lock or similar?

                  Isn't the distinction between individual policies and group policies going to be maintained in the state exchanges?

                  THAT is going to mean the individual options remain WAY too expensive - because they can't be a better deal than the insurance company policies of approximate equivalence or they will run into complaints from the all important insurance industry..

                  Don't forget, they wrote the bill!

                  This situation is going to make people really angry, as the injustice is really terrible.

                  We need a national healthcare PLAN. Not a national healthcare capitulation.

                  by Andiamo on Thu Apr 15, 2010 at 05:14:29 PM PDT

                  [ Parent ]

                  •  Dvogel, i just wanted to say, I respect your (0+ / 0-)

                    point of view.

                    I think you're wrong, but I respect your sticking to your guns. I suspect that I'm older than you are, and maybe have seen a lot more of how politicians work. What scam artists they often are. Americans have really led sheltered lives and the once independent media here is really, gone..after decades of attrition, its in tatters..  And these blogs are a battlefield between well organized PR firms with the deepest pockets in the world- and the truth. And the bad guys are winning.

                    I agree that the bill represents a change, because its going to end up educating MILLIONS of people in what their politicians really are..  That is a change, for many people. They wont be able to deny it. BUT ITS NOT THE CHANGE WE NEED.. its not the change we waited nine long years for.. NOT AT ALL..

                    ALSO, its going to leave millions of people bitter and angry and sad and HEARTBROKEN, and mean years of suffering and a huge number of people continuing to die BECAUSE THEY STILL CAN'T AFFORD HEALTHCARE. AND this is and was avoidable!

                    I don't see the improvement you see for poor people or affordability.. I don't see it at all. I think its all fluff. They know its not going to work for people.. They designed it that way..

                    Affordability certainly didn't happen in Massachusetts for people with chronic illness, and that should be the test.. because thats where the rubber meets the road..

                    Insurance is supposed to cusion the blow WHEN YOU GET SICK..

                    Instead, the hospitals and insurers and drug companies all got teir interests addressd, BUT THE PEOPLE DIDN'T.

                    Instead, the ones who needed it the most- are in a worse situation, because before, at least they had free clinics..  Now many of them are in HUGE CRIPPLING DEBT..

                    Now they get signed up for insurance they cannot afford..
                    And both hospital fees and drug costs there are the highest in the nation..

                    They were screwed because of price fixing deals..and they were screwed because of this idiotic dependence on privatized insurance companies.. When expanding public healthcare would have fixed the problem. WHY NOT ..

                    Your hopes for improved affordability wont bear fruit..  Because even poor people who get what you probably see as "a lot" of help STILL WONT BE ABLE TO PLAY THE PAY FOR CARE GAME.

                    You probably grew up in a stable, middle class home. Well, I grew up in a single parent family and I know what thats like, for want of a nail, a kingdom is lost..

                    We could not afford even "small" extra costs.. we lived on a very small amount of money.. Many people do.  And anything that tries to shift costs to poor people - once they make more than 3x FPL (which on the coasts is often still not enough to rent a safe home and drive a safe car) Anything that is open ended just isn't going to work.  People wont get care, and many are going to end up dying needlessly.

                    When you are poor you absolutely cannot take the risk of triggering anything that could land you owing money and homeless. This so called "reform" doesn't address that. In Massachusetts, people with chronic conditions can't find a sweet spot. Its not working for many of them.

                    Bluntly, this plan is a mess. It didn't change anything. It remains punitive, and dysfunctional. And, if the goal is getting people who dont current have it decent healthcare, it WILL fail. It represents an HUGE MISSED OPPORTUNITY and in every sense a betrayal of the American people for shoving this mess down our throats, when single payer would have quickly garnered at least 60-70% support, and then go up from there, would cost HALF as much and give americans twice as good, potentially global quality health care.

                    Instead, we have more of THIS.

                    We need a national healthcare PLAN. Not a national healthcare capitulation.

                    by Andiamo on Thu Apr 15, 2010 at 05:59:06 PM PDT

                    [ Parent ]

                    •  Well thanks for the nice comment... (0+ / 0-)
                      1. In MA...the Governor is fighting back on premium increases and we can too
                      1. Remember 15 million on Medicaid for free or virtually free
                      1. No matter how much the actual premium is the subsidies for many people will be capped due to subsidies received

                      In fact the people who are 300% FPL or less in income will get the most benefit and affordability of this HCR of any the poor will in fact get the most benefit, the upper middle class will get the least benefit...

                      Obama - Change I still believe in

                      by dvogel001 on Thu Apr 15, 2010 at 08:17:55 PM PDT

                      [ Parent ]

                      •  Medicaid isn't free. It will have to be repaid. (0+ / 0-)

                        This "system" cannot give people medical care for free because of the way it maintains power, FEAR.

                        In a war, would the military be able to tell draftees to go and die for some piece of dirt if they didn't shoot deserters? No.

                        Obama really blew it by not coming out swinging for single payer.

                        by Andiamo on Fri Apr 16, 2010 at 07:33:44 AM PDT

                        [ Parent ]

                        •  I don't think this premium cap has even the sligh (0+ / 0-)

                          slightest credibility. Its just there to shut people up.

                          First thing, I think very few people expect this law to ever be implemented. Four years is a VERY long time.

                          And this law has no real backers except the idiots in Washington. Nobody wants it.

                          The only thing that can and would get WIDESPREAD support is single payer. The right wingers who claim to hate it have been shown in studies to NOT KNOW ANYTHING ABOUT IT.

                          When its explained to them clearly, then they express support!

                          Obama really blew it by not coming out swinging for single payer.

                          by Andiamo on Fri Apr 16, 2010 at 07:39:04 AM PDT

                          [ Parent ]

                          •  We will have single payer within five years (0+ / 0-)

                            and the right will be big supporters of it, like they suddenly seem to be becoming in the UK (!)

                            It fits in well with the pro-family meme.

                            Dems are going to end up being blamed for a lot of stuff that really is the right's fault.

                            Obama really blew it by not coming out swinging for single payer.

                            by Andiamo on Fri Apr 16, 2010 at 09:15:09 AM PDT

                            [ Parent ]

                          •  I don't think that is realistic... (0+ / 0-)

                            that being said, I am all for opening up Medicare for all on a community rated paid basis....

                            Obama - Change I still believe in

                            by dvogel001 on Fri Apr 16, 2010 at 10:54:27 AM PDT

                            [ Parent ]

                  •  The trick with the 3x premium... (0+ / 0-)

                    for age is that all the insurance companies will want the young and healthy insureds and will need to keep those premiums down to win business so the 3x premiums for the 50 - 65 year olds will be on a relatively low base...

                    Obama - Change I still believe in

                    by dvogel001 on Thu Apr 15, 2010 at 08:19:34 PM PDT

                    [ Parent ]

                    •  Unprofitable. (0+ / 0-)

                      Everybody starts getting sick starting around age 35. Its a function of various parameters in your body that change with time. So its completely unavoidable, the best things people can do are avoid toxic chemicals and get clean water and air get exercise. But as I said, everybody starts getting sick around the same time, and everybody dies.

                      If the older people aren't profitable, its a magacorporation's duty as a profit seeking company to dump them, right?

                      Otherwise their officers might be sued by shareholders.

                      This is America.

                      Obama really blew it by not coming out swinging for single payer.

                      by Andiamo on Fri Apr 16, 2010 at 07:30:23 AM PDT

                      [ Parent ]

                      •  Right so they will try to... (0+ / 0-)

                        maximize profits by setting premiums as low as possible for the young and healthy which limits what they can charge at the old and sick end...

                        Obama - Change I still believe in

                        by dvogel001 on Fri Apr 16, 2010 at 08:51:20 AM PDT

                        [ Parent ]

                        •  Maybe... I hope so.. But I doubt it. (0+ / 0-)

                          They would have done that already, but they haven't.

                          This is the end of the game. Every corporation involved is trying to milk it for what its worth. They aren't thinking long term. They know its only a matter of time before the system breaks.

                          Nobody knows how that will happen, though.
                          But it cannot continue just getting worse.

                          In order for the economy to function, people need to be able to buy things. Fluff recoveries cost a lot of money to generate just to let the Ponzi investors get their money out. And they only put off the problems, making them bigger.

                          Real recoveries take real progress. Wealth creation. We have not seen that.

                          The insurance industry is sucking up too much money without giving the people anything in return. (kind of like their pals the politicians, eh?)

                          If we are going to thrive, we have to rid ourselves of this burden.

                          Obama really blew it by not coming out swinging for single payer.

                          by Andiamo on Fri Apr 16, 2010 at 09:12:33 AM PDT

                          [ Parent ]

                          •  Right now... (0+ / 0-)

                            before pre-existing conditions...their perverse incentive is to price as many people out of the market as possible so they get in the high risk pool...which predictably is what they are doing...

                            That won't be the case in the exchanges...

                            Obama - Change I still believe in

                            by dvogel001 on Fri Apr 16, 2010 at 09:28:37 AM PDT

                            [ Parent ]

                          •  How long with that 5 billion last? (0+ / 0-)

                            Not very long, at all.

                            Look at it this way, the subsidies 2014-2020 work out to something like $100B/year. If the high risk pool is as welcoming as you claim, the money it will need will be a significant amount - I think it will be comparable to that $100B/year  

                            In the same ballpark.

                            Obama really blew it by not coming out swinging for single payer.

                            by Andiamo on Fri Apr 16, 2010 at 09:37:31 AM PDT

                            [ Parent ]

                          •  No because it is only for uninsurable... (0+ / 0-)

                            with pre-existing it is a limited it is probably more than $5 billion but way less than $100 billion...

                            Obama - Change I still believe in

                            by dvogel001 on Fri Apr 16, 2010 at 09:39:09 AM PDT

                            [ Parent ]

                          •  But those folks by definition (0+ / 0-)

                            (the sick) account for 90% of the costs.. Healthy people go to the doctor maybe once or twice a year, if that.

                            Sick people have serious issues that cost money.

                            You can't tell people you can make a profit on sick people. Thats a bald faced lie.

                            Obama really blew it by not coming out swinging for single payer.

                            by Andiamo on Fri Apr 16, 2010 at 09:46:34 AM PDT

                            [ Parent ]

                          •  A couple of points... (0+ / 0-)
                            1. Not all with pre-existing conditions will be eligible, many are already on group plans and are well covered and others live in states that already prevent discrimination based on pre-existing conditions like NJ...
                            1. So you are left with the pre-existing conditions people not in group plans and not in states with those protections already...that is a much smaller number
                            1. The purpose of the $5 Billion in funding is so that they high-risk pool does not need to be a profitable venture...

                            Obama - Change I still believe in

                            by dvogel001 on Fri Apr 16, 2010 at 09:52:12 AM PDT

                            [ Parent ]

                          •  It could easily be MORE, because the (bad) bill's (0+ / 0-)

                            approach is supposed to be the (presumably cheaper) LONG TERM approach..(!)  The short term fix, i.e. the high risk pool, by virtue of it being less efficient and all, would by logic cost more, because it was a quick, bridge until the efficient way was completed. So, it should cost more- to address the same urgent need.

                            If it doesn't, something is wrong.

                            Its just like people have to wonder why, with unemployment soaring and homelessness increasing, WHY ARE WELFARE CASELOADS NOT RISING?

                            Anybody who looks a little deeper can see that the states, who I think, foot the bill, are throwing insurmountable obstacles in front of poor people that they can't overcome.

                            The same thing is going to happen with this fake health reform.

                            This kind of sleazy fake "safety net" is what Americans waited nine years for?

                            Its not going to be remembered well in the history books.

                            Obama really blew it by not coming out swinging for single payer.

                            by Andiamo on Fri Apr 16, 2010 at 09:44:35 AM PDT

                            [ Parent ]

    •  Below is part of Mississippi's anti-HCR suit (2+ / 0-)
      Recommended by:
      thegood thebad thedumb, RenMin

      alledging HCR privacy right violation:

      1. Moreover, compelling Plaintiffs to enter into a private contract to purchase insurance from another entity will legally require them to share private and personal information with the contracting party. Specifically, by requiring Plaintiffs to abide by the Act’s individual mandate, Congress is also compelling Plaintiffs to fully disclose past medical conditions, habits and behaviors. Not only will the insurer be privy to all past medical information, Congress’s individual mandate will, by necessity, allow the compelled insurer access to Plaintiffs’ present and future medical information of a confidential nature. If judicially enforceable privacy rights mean anything, then private and confidential medical details certainly merit Constitutional protection. Plaintiffs should not be forced to disclose the most intimate details of their past, present and future medical information.


      •  Hadn't thought of that angle . . . (2+ / 0-)
        Recommended by:
        thegood thebad thedumb, RenMin
        •  Rich people get an exemption (0+ / 0-)

          of course.

          Or you can leave the country.Or not get sick, ever (going to a formerly free clinic in Massachusetts doesn't just get you a bill, it also gets you signed up against your will and the bills start coming every month)

          After three years, many people with chronic illness have five figure debts because they don't make enough to buy both insurance and care, and they make too much to qualify for enough aid - so they sink deeper and deeper into debt with no light at the end of the tunnel, and eventually they start getting sued and their wages (except for a very small sum) garnished.

          So many of chronically ill working poor are scrambling to leave the state. Its the only hope they have of being able to avoid losing everything they have or God forbid, save anything.

          Many low-income residents, who used to receive completely free care, now face co-payments, premiums and deductibles under the new system – financial burdens that prevent many of them from receiving necessary medical treatment. Since the state’s reforms passed, premiums under the state insurance program have increased 9.4 percent. The study found that if a middle-income person on the cheapest available state plan got sick, he or she could end up paying $9,872 in premiums, deductibles and co-insurance for the year.

          Many residents remain uninsured or have inadequate insurance.

          Under a single-payer system, doctors, hospitals and other health care providers are paid from a single fund administered by the government.

          "We are facing a health-care crisis in this country because private insurers are driving up costs with unnecessary overhead, bloated executive salaries and an unquenchable quest for profits — all at the expense of American consumers," said Sidney Wolfe, M.D., director of Public Citizen’s Health Research Group. "Massachusetts’ failed attempt at reform is little more than a repeat of experiments that haven’t worked in other states. To repeat that model on a national scale would be nothing short of Einstein’s definition of insanity."

          The study found that a national nonprofit single-payer system could save Massachusetts about $8 billion to $10 billion a year in reduced administrative costs. Currently, Americans spend 31 cents of every health care dollar on administrative costs, by far the highest rate in the world and much higher than the 17 cents spent in Canada, which has single-payer universal health care.  

          "Big hospitals and insurers have gotten rich off reform, but a survey shows that more people directly affected by it have been harmed that helped," said Steffie Woolhandler, M.D., a PNHP co-founder and associate professor of medicine at Harvard Medical School who helped prepare the study. "We’re seeing patients who now can’t afford vital medications and treatments that they’ve been on for years because of the new co-payments and deductibles imposed by the law."

          Read the report, "Massachusetts’ Plan: A Failed Model for Health Care Reform." 

          We need a national healthcare PLAN. Not a national healthcare capitulation.

          by Andiamo on Thu Apr 15, 2010 at 07:59:40 AM PDT

          [ Parent ]

  •  Nice Job (2+ / 0-)

    On another note, I sometimes wonder if Americans realize that their constitution was written on the back of a napkin.

    Compared to serious nations, I mean.

    The Pluto Chronicles. You want reality? You can't handle reality!

    by Pluto on Wed Apr 14, 2010 at 11:37:46 PM PDT

    •  Thanks! (2+ / 0-)

      I think a lot of people would re-think the degree to which original intent can be divined if they realized how much was isn't said in the Constitution.  A lot of topics were too hot and just got kicked down the road for future generations to figure out (or fight out).

      •  I'm Glad You Took that in the Spirit Intended (0+ / 0-)

        I've been comparing the constitutions of modern nations, and the US Constitution is really very flimsy, sketchy, archaic, unevolved, and unsuitable for the 21st century.

        It's funny how folks run around clutching the poor thin thing as if it were an altar relic with magical properties -- instead of a patchwork of pitfalls and liabilities.

        The Pluto Chronicles. You want reality? You can't handle reality!

        by Pluto on Thu Apr 15, 2010 at 12:30:08 AM PDT

        [ Parent ]

  •  What I think the debate may eventually come down (0+ / 0-)

    to w/r/t the constitutionality of the mandate is the question "Can the federal government use the Commerce Clause to regulate an economic non-activity?"

    I can think of two precedents which come close to answering the question, but still fall short:

    In Wickard v. Filburn, a group of wheat growers who were growing wheat only for their own consumption (not engaging in any commerce with it) challenged governmental regulations which sought to control the amount of wheat grown and its price.  The Court held that the Commerce Clause did extend to this activity, as growing wheat for personal consumption still had an affect on the commercial wheat market.  

    How is the mandate different?  Well...the mandate seeks to regulate a NON-activity.  A person who is not in the market for health insurance is NOT engaging in an activity like wheat production.  They are simply NOT acting at all.  Could one argue that by not buying health insurance, one is affecting the health insurance market?  I suppose, but then the result would be patently absurd: it would mean that EVERY human has an affect on EVERY market in which he is not a participant.  Don't own a car?  You are affecting the car market.  Don't buy ANY product X?  You are engaged in the commerce of that product by NOT buying it.  I can't imagine a Court stretching the idea of commercial "activity" that far.

    Well how about Heart of Atlanta Motel v. U.S.?  In that case, proponents of racial segregation challenged the Civil Rights Act ban on discrimination from public accomodations (restaurants and hotels, etc.)  Among other arguments, the plaintiffs argued that the government had no power under the Commerce Clause to regulate because refusing to serve a customer is a choice to NOT engage in commerce with certain people.  The Court there ruled with the government.

    The distinction here, of course, is that the plaintiffs, again, WERE engaged in commerce - they were operating restaurants and motels which were open to the public.  They were engaged in an economic activity that could legitimately be regulated by the federal government under the Commerce Clause.  But again, comparing this result to the mandate - one who has not purchased health insurance is NOT engaged in any economic activity.  They are simply existing.

    Bottom line, I don't think there's much precedent for the court to go by.  I think on the issue of the Commerce Clause - this one's a toss up.

    •  Some appeal to this argument but (0+ / 0-)

      I don't think it overcomes the commerce power justification.

      In Wickard, the farmer was essentially failing to engage in interstate commerce.  His local growing of wheat for his own purposes was done so he wouldn't have to buy wheat from other farmers.  So it's a matter of semantics, but in a sense Congress was regulating non-activity.

      In the motel case (as well as the Ollie's Barbecue case, which I think is Katzenbach v. McClung but don't quote me), again, Congress was regulating a non-activity -- refusal to serve a certain group of customers.

      Admittedly, mere existence without any commercial activity at all could be distinguished as a matter of fact, but how does that change the legal analysis?  The justification for the mandate is precisely the same as in Wickard.  Refusal to take place in the interstate commerce activity, in this case purchase of health insurance, damages the economy.  (In this case, raising overall medical costs by shunting the non-insured into emergency rooms.)  

      In addition, arguably this isn't even an exercise of the commerce power, but the taxing power, as there is not technically a requirement to buy insurance; instead, a governmental fee (tax) is imposed if one doesn't have a policy.  

      "[W]e shall see the reign of witches pass over . . . and the people, recovering their true spirit, restore their government to its true principles." Jefferson

      by RenMin on Thu Apr 15, 2010 at 06:37:18 AM PDT

      [ Parent ]

      •  Thanks for your reply. (0+ / 0-)

        Perhaps I should be clearer when framing what, in my opinion,  is a stark distinction between the mandate regulation and the cases mentioned.

        Again, in Wickard and Heart of Atlanta, the plaintiffs in that case WERE engaging in economic activities - namely, the agricultural production of wheat and operation of a restaurant and motel open to the public.  Those were actual economic activities, which, according to the court, the Commerce Clause gave the federal government the power to regulate.  In other words, if you choose to grow wheat, and you choose to operate a restaurant, the federal government can regulate your participation in those activities.

        However an individual who is NOT a participant in a given market for goods or services is NOT engaged in an economic activity that can be regulated.  Every second of every day, we engage in activities that are not economic.  For example, I am right now writing a post on a blog.  I am not buying a car.  I am not in the market to buy a home.  I am not growing apples. I am not engaged in the transport of copper, etc. etc.  The list of economic activities I am NOT engaged in is, quite literally, endless.  I am simply here, existing.  How can the Commerce Clause apply to my mere existence - a wholly uneconomic non-activity?

        You bring up an excellent point about the power to tax.  I've been exploring that question for a few days now, and haven't solidified my position in either direction.  On the one hand, the federal government UNDOUBTEDLY has the power to tax.  That power is very, very broad.  And Court precedent has shown that taxation CAN legitimately be used as a tool for regulation, as opposed to it being restricted to revenue raising purposes.  

        However, is the power to tax limitless?  Can it be used as an "end around" for giving the government power to regulate in ways that it otherwise wouldn't be able to?  I don't know.  An example:  the Supreme Court in US v. Lopez struck down Congress' ability to regulate the possession of guns in school zones claiming that such regulation went beyond the reach of the Commerce Clause.  With that in mind, could Congress have run an end around this ruling by imposing a substantial IRS "fine" (say, $10,000 per occurrence) on those found to be possessing weapons in school zones?  

        I honestly don't know the answer to that.  Perhaps it could!  But it seems too easy a way to make the power of the government limitless - something the Constitution clearly does NOT support.

  •  What is your take on this part of the 10th (0+ / 0-)

    nor prohibited by it to the States,

    The language here is odd to me its as if this sentence contradicts the first part of the 10th.

    The intent of the 10th as interpreted was to allow the states to govern themselves in all matters that affected the citizenry within their borders, but this part seems like the intent is to leave to the states those powers not expressly prohibited to the states or the central government by the constitution.

    Globalization is great, as long as you can afford it!!

    by padeius on Thu Apr 15, 2010 at 12:53:21 AM PDT

  •  There are certainly many issues with WTO treaty (0+ / 0-)

    obligations. For example, these are the requirements of the General Agreement on Trade in Services we signed in 1994

    What the GATS Rules Require

    Broadly speaking, there are three "tiers" of GATS rules affecting health care. The first tier of rules, General Obligations and Disciplines, apply equally to all service sectors of all WTO member countries, regardless of whether those sectors are committed in a country's schedule or not.

    The second tier, Specific Commitments, apply only to those sectors that a country commits to its schedule.

    These rules are more far-reaching, and members were given the opportunity to write any exceptions or limitations to them into their schedules. Finally, under GATS Part III, Article XVII, WTO member countries are allowed to negotiate a third "tier" of rules to govern their commitments above and beyond the underlying Specific Commitments rules that normally apply. Citing this provision, the United States has inscribed its Financial Commitments schedule with the "supplemental" rules of the Understanding on Commitments in Financial Services. These rules apply in addition to the underlying GATS Specific Commitments rules on Market Access and National Treatment (described below).

    Table 1 Selected rules included in the General Agreement on Trade in Services Rule tier Binding upon Rule content General Obligations (Tier 1)

    Specific Commitments (Tier 2)

    Supplementary Voluntary Commitments (Tier 3)

    All member states of the World Trade Organization

    Only those service sectors that members choose to bind in their schedules of commitments Service sectors already scheduled that members choose to make additional liberalization commitments in (financial services in the U.S.)

    1. Most-favored nation treatment.
    1. Prohibition on "new monopolies"
    1. Disciplines on domestic regulation
    1. Open market access obligations
    1. National treatment of all foreign service providers
    1. Subjection of public entities to GATS rules
    1. "Standstill" of existing exceptions to liberalization
    1. Requirement to allow any new financial service
    1. Requirement to "endeavor to remove or limit any significant adverse effects" of domestic regulation

    Do you see where this GATS box leaves us very little wiggle room within to forge out some kind of affordable health care?

    Its basically impossible.

    We need a national healthcare PLAN. Not a national healthcare capitulation.

    by Andiamo on Thu Apr 15, 2010 at 07:47:51 AM PDT

  •  WTO Committments seem to overrule laws (0+ / 0-)

    A look at the voluminous amount of analysis about the implications of the US-Antigua online gambling case show this.

    Basically, any "protection" written into US laws that impedes free trade (say a requirement that health insurance policies sold by some multinational meet some standard) might be barred by WTO as a restriction of free trade!

    US Antigua is instructive!

    Obama really blew it by not coming out swinging for single payer.

    by Andiamo on Fri Apr 16, 2010 at 08:14:37 AM PDT

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