Free Markets, Free People

SCOTUS

Health insurance mandate’s Constitutionality and the "necessary and proper" clause

It appears that the main question, or at least one of the main questions, about the health care mandate in Obamacare that requires Americans buy health insurance may revolve around the "necessary and proper" clause and not just the badly abused Commerce clause.

From the New York Times:

The necessary-and-proper clause sits at the end of Article I, Section 8, after 17 paragraphs that enumerate the powers delegated to Congress, ranging from the establishment of post offices to the declaration of war. It conveys authority “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.”

The reason that is a key is because the latest decision that went against the administration involved Judge Henry Hudson rejecting the “necessary and proper” defense.  As the Times mentions, the court has struggled over the years to define the necessary and proper clause.  Here’s the case as it stands now:

The [DoJ] , which represents the Obama administration, argues that the insurance requirement is constitutional under the commerce clause and allowed under the necessary-and-proper clause as a rational means to an appropriate end. It points to a series of Supreme Court precedents that interpret those provisions as allowing the regulation of “activities that substantially affect interstate commerce.”

The act of not obtaining health insurance, the federal government’s lawyers contend, is effectively a decision to pay later rather than up front in a market that consumers cannot avoid. Such decisions, they say, have a substantial impact on the market because many of the uninsured cannot afford their care and shift costs to governments, hospitals and the privately insured.

Furthermore, the lawyers argue, the insurance mandate is essential — both necessary and proper — to making other changes work, particularly prohibitions on discrimination by insurers against those with pre-existing medical conditions [emphasis mine].

Obviously, at least in my estimation, the argument fails for a number of reasons.  Obviously, I’m not a lawyer, so I’m simply giving my arguments based on the stated particulars of the case as outlined above. 

First the wording “rational means to an appropriate end.”  I’d argue the end is not at all appropriate – i.e government dictating that someone must have insurance certainly smacks of what government had denied and called a “myth”.  That is government is now in charge of health care for everyone.  Unless you accept that premise, the argument is invalid.  Acceptance of that premise and the “appropriate end” argument means government can pretty well do whatever it wants and the Constitution as a guiding document has been mostly rendered moot.

The argument goes on to say that not having health insurance is “effectively a decision to pay later rather than up front in a market that consumers cannot avoid.”  Obviously, in the strictest sense that’s not true.  “Consumers” can avoid that market.  And do.  That’s not to say they will – but the fact is no one is forced to use it and no one has to use it if they so choose.   Arguing that consumers must be required to buy insurance because they will use the market seems a claim that is unfounded in fact.  People of means, for instance, may decide they’d rather pay as they use the service, vs. obtaining insurance.  That should be their decision, not governments if we’re really a free country.  And while they may be a small set of those who will seek health care, they still give lie to the necessity of insurance to cover the costs of their care – the “pay later than up front” mentioned in the emphasized argument.

Finally there’s the argument which says the mandate is necessary “to making other changes work, particularly prohibitions on discrimination by insurers against those with pre-existing medical conditions

No.  It’s not. Consider the fact that much of the problem we face with health insurance  today revolves around the structure of the market as one in which employers provide the coverage.  Then there’s a problem of  government’s making.  The restrictions on selling  health insurance across state lines.  This has essentially segmented the huge pool we see in other insurance markets to 50 segmented markets.  It has made the ability to buy an insurance product at the best price and outside the traditional employer furnished insurance all but impossible.  Removal of that restriction would go a long way in solving some of the toughest problems – pre-existing conditions and portability. While government may feel compelled to place “prohibitions on discrimination by insurers against those with pre-existing medical conditions”, there would probably be less of a need to discriminate in larger pools of insured.  Anyway, that solution is found nowhere in the existing law.

There is no “right” to health care.  As far as my opinion goes, I find nothing in the Constitution that gives government the power or authority to require I pre-pay for health care.  And that is precisely what it is claiming – that health care is something I will use and since I will use it, I must pre-pay for that use.  No matter what my health, age, etc.   It argues that it can remove my choice in the matter by law.

One more time – freedom is choice.   When it is removed, so is freedom.  This is just another step toward a more oppressive government presence in our lives.  One can only hope that the SCOTUS will rule against the administration on this travesty of a law and cripple it to the point that repeal is the only valid choice for Congress.  Otherwise, the door will be opened to all sorts of mandates we haven’t even imagined.   And with each mandate more choice is eliminated.

If anyone can argue that was the vision of the founders of the country or the writers of the Constitution, and do so with a straight face, I’ll be glad to nominate them for an Oscar next year.

~McQ

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SOTU Fact Check

Surprisingly, AP does it (credit where credit is due).  They cover the “spending freeze” (it would amount to less than 1% of the deficit) which we’ve covered in some detail.  They also point out that the nonsense about the health care plan preserving the “right” of Americans to keep their doctor and their plan isn’t exactly true (we’ve covered that before as well).   And they take on the claim about lobbyists which Michael has handled quite well below.

AP also talks about the deficit commission that Obama covered last night:

Obama: “I’ve called for a bipartisan fiscal commission, modeled on a proposal by Republican Judd Gregg and Democrat Kent Conrad. This can’t be one of those Washington gimmicks that lets us pretend we solved a problem. The commission will have to provide a specific set of solutions by a certain deadline. Yesterday, the Senate blocked a bill that would have created this commission. So I will issue an executive order that will allow us to go forward, because I refuse to pass this problem on to another generation of Americans.”

THE FACTS: Any commission that Obama creates would be a weak substitute for what he really wanted — a commission created by Congress that could force lawmakers to consider unpopular remedies to reduce the debt, including curbing politically sensitive entitlements like Social Security and Medicare. That idea crashed in the Senate this week, defeated by equal numbers of Democrats and Republicans. Any commission set up by Obama alone would lack authority to force its recommendations before Congress, and would stand almost no chance of success.

The key line is in bold. Any commission formed by executive order will have no authority over Congress. Thus it will be a “gimmick” designed to “pretend we solved a problem”. How can it be anything else?

As Obama mentioned the Senate blocked a bill that would have created the commission. The same Senate that today used its 60 vote supermajority to pass a 1.9 trillion dollar hike to the debt ceiling. So you can draw your own conclusions as to how serious the party that can muster 60 votes for raising the debt ceiling but can’t manage to get those same 60 votes to pass a deficit commission is about the debt and cutting spending.

Another one covered by AP has to do with the claim of 2 million jobs saved or created by the “stimulus”. By their calculation and those of CBO, it may – let me stress that word – may have been in the range of 600,000 to possibly 1.6 million. Yeah – with tight numbers like that, you can bet they know what they’re talking about.

That brings us to Obama’s quote about transparency in which he calls on the White House and Congress to “do our work openly and give our people the government they deserve”. Most of the people have awakened to the fact that after not vetting the current resident of 1600 Pennsylvania Ave, we have the government we deserve. However, AP points out that Obama just skipped past all the broken transparency pledges he made and hasn’t even attempted to keep. Why in the world would anyone take his latest plea for transparency seriously?

You may or may not remember one of the few mentions of foreign policy last night – other than the usual tough talk toward Iran, most likely signifying nothing in reality – in which he claimed, “The United States and Russia are completing negotiations on the farthest-reaching arms control treaty in nearly two decades.”

Yeah, well, not quite. According to AP:

Despite insisting early last year that they would complete the negotiations in time to avoid expiration of the 1991 Strategic Arms Reduction Treaty in early December, the U.S. and Russia failed to do so. And while officials say they think a deal on a new treaty is within reach, there has been no breakthrough. A new round of talks is set to start Monday. One important sticking point: disagreement over including missile defense issues in a new accord. If completed, the new deal may arguably be the farthest-reaching arms control treaty since the original 1991 agreement. An interim deal reached in 2002 did not include its own rules on verifying nuclear reductions.

And one of my favorite claims of the night – I’ve killed more terrorists than Bush did in 2008:

“And in the last year, hundreds of al-Qaida’s fighters and affiliates, including many senior leaders, have been captured or killed — far more than in 2008.”

Not so fast, says AP:

It is an impossible claim to verify. Neither the Bush nor the Obama administration has published enemy body counts, particularly those targeted by armed drones in the Pakistan-Afghanistan border region. The pace of drone attacks has increased dramatically in the last 18 months, according to congressional officials briefed on the secret program.

If it is an “impossible claim to verify” then Obama knew when he said it, that he was safe from scrutiny. Nice. I have four words for those who choose to believe his claim: “saved and created jobs”.

Last but not least we turn to PoltiFact for the SCOTUS shot by Obama:

“Last week, the Supreme Court reversed a century of law that I believe will open the floodgates for special interests – including foreign corporations – to spend without limit in our elections.”

Politifact says that if it’s true, it is “barely true”. They have a very fine write up which I encourage you to read about why Justice Alito may have been absolutely justified in his silently mouthed “not true” as Obama took that shot. And I have to say, trying to humiliate the SCOTUS in a public speech with them sitting right there open to such ridicule is a politically stupid stunt. They are, after all, still human beings, and I wouldn’t want to be arguing a case for the Obama administration that could go either way after POTUS called SCOTUS out. They’re not underlings like the JCS who have to sit there and take it. They are members of an equal and separate branch. I don’t think we’ve heard the last of that little bit of political stupidity.

~McQ

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