It’s Nice To Be Right…

…but it’s even nicer to have a federal judge agree that you’re right.

On to the Supreme Court.  Or just repeal the darn thing and get it over with.

P.S. – for all my lawyer-geek readers, here’s the full opinion.  (h/t National Review).

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Avoiding Free-Riding Without a Health Insurance Mandate

My general interest in the debate surrounding the health insurance mandate led me to a post written by David Dranove of the blog Code Red the other day.  While David is generally supportive of the mandate, he posed a few good questions to conservatives and liberals who object to it.  As a non-lawyer, he tacitly set aside the constitutional issues, which I’ve addressed earlier and which I still think rule out further discussion of the idea.  That said, I agree that the impulse behind the mandate (prevent free-riding in the health care system) is a fair-minded one.  Rather than ask everyone to visit David’s blog (although I still recommend it) to read my comment, I thought I’d re-post my thoughts here.

The question David put to conservatives opposed to the mandate was this:

Are you going to mandate that providers stop treating the uninsured? Or are you going to mandate charity? If neither, then the uninsured are going to receive care and free ride on the rest of us. Government has every right to act on the behalf of the majority and limit the free riding. Look at it this way. Conservatives endorse the right of the government to raise taxes to pay for the national defense, lest those who do not want to pay their share free ride on the rest of us. Just as the national defense protects all of us, so do our medical providers. The parallel to health care is close to exact.

This is a fair question.  No one believes that doctors will stop caring for the sick, even if they are uninsured.  We wouldn’t want them to do that, anyway — there’s some minimal moral expectation that those who are in need should be able to expect help from our medical system.  So, since the care will be provided, who will pay?  And if it’s not the government — essentially, a collective responsibility assumed by the public — who else could it be?  The solution, to my mind, is through a series of changes rather than a single one (or a single payer).

First, in the case of non-emergency care, we empower medical providers to require proof of ability to pay prior to receiving care.  That can come in any number of forms: cash up front, traditional insurance, enrollment in government health programs (VA, Medicaid, Medicare), or the posting of a bond. That’s a lot of options for anyone, and any truly indigent person would be taken care of by Medicaid. Those not eligible for government programs but without traditional insurance would be able to pay on a fee-for-service basis, or to post a bond. The bond option isn’t really available today, but that’s mostly because anyone can get medical care without showing any ability to pay at your average hospital.  If a bonding option was necessary for some uninsured Americans to get treated, and it was affirmatively supported by government policy, it would flourish.  Since that bond would only be intended to cover the specific treatment sought, the required payment would be at a considerable discount to traditional insurance, but not so low to encourage routine use of the option.

If the individual is receiving emergency care, obviously there won’t be an opportunity to address payment before care is received. In this case, for uninsured indigents, hospitals should be allowed to administratively enroll them in Medicaid. You might argue that this is the same as an insurance mandate, but this is different in two ways. First, it is the hospital, not the government, that is taking the action as a condition of providing care. Second, the states could implement this requirement, and the general police power of the states includes the ability to require such things — not the Commerce Clause of the U.S. Constitution.  This simple rule would protect the hospital from a large fraction of uncompensated emergency treatment cases.

For the uninsured that are not indigent but can’t pay their emergency bills (college students, the unemployed without COBRA, etc.), I’d recommend that the government establish a “one-strike-and-you’re-out” risk pool.  This risk pool would serve to pay for the emergency care costs only (not follow-on expenses when the individual is capable of making his/her own health decisions). The risk pool would pay on two conditions: 1) the individual agrees to pay over time a means-tested proportion of his care expenses at a subsidized interest rate and 2) the individual obtains basic health care insurance (high-deductible, no bells and whistles) and maintains it for a period, maybe five years.  This system protects the medical provider from the risk of nonpayment, it creates a constitutional means for requiring the uninsured-by-choice to pay their bills, and it limits the government’s liability to a smaller set of health transactions.

If an uninsured individual doesn’t want to avail himself of the risk pool, he must pay his bills out of his pocket. For those who don’t, Congress should create a much more streamlined and powerful means of collections for health care providers. Such a system, which could operate out of the same Magistrate Court system that hears most Social Security appeals today, would empower health providers to recover their own money, rather than take the financial hit and pass the cost onto paying customers. It’s not as if hospitals WANT to raise costs on paying customers — it’s just that the transaction costs of recovering the funds through current channels are far too high to make it worthwhile. Reduce the transaction costs and those incentives would change, benefiting the rest of us that don’t try to free-ride the system.

This system only works if guaranteed issue is also mandated, since an individual exiting the emergency room may not be able to obtain coverage under the current system. But since guaranteed issue is a given in every health reform bill I’ve seen, I don’t consider it too controversial.

Note that none of these changes restrict one’s liberty to choose how to pay for health care — so long as one doesn’t put others on the hook for health care. Once the uninsured individual does that, his liberty is constrained, but in a manageable and humane way. Why take an unconstitutional, coercive route when you can reach the same result without dramatically increasing costs for the insured population and still get the doctors paid?

What other ideas do folks have to avoid free-riding in our system without a mandate?



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Surprise! Liberals Attack the Health Insurance Mandate

The health care story of the day is that the Left — yes, the Left — has turned against the health insurance mandate.  National Review Online has a great roundup of the liberal opinionmakers who are storming the barricades, including Markos Moulitsas of Daily Kos, Keith Olbermann, Howard Dean, and Jon Walker of Firedoglake.

It’s a bit rich, of course, since the individual mandate has been in the bill since the beginning.  The same arguments being employed now by the Left have been championed by anti-mandate conservatives — including this blog — for months now.  I suspect that what’s really going on here is that liberals are angry about the lack of a single-payer or its Trojan Horse, the public option, in the Senate bill.  They have to give their folks in Washington some ammunition to bring it down.

Rather than taking on their president, however, they are choosing to go after the real outrage in the bill — the fact that it’s “sell[ing] the middle class into corporate servitude” when it “makes them criminals if they don’t buy insurance.”   In fact, since the Obama campaign opposed the mandate during the campaign (his central point contention with Hillary on health care), their attack gives him cover to retrench to his original anti-mandate position.

I’ve argued for a while that conservatives made a mistake when they attacked the public option as the central front in the war against the Left’s health care agenda.  It’s the mandate’s coercive, unconstitutional power that has the most potential to destroy the relationship between Americans and their government.  If it takes lefty bloggers to get this issue front-page status, that’s fine with me.  To my liberal friends, feel free to raid this blog’s posts on the mandate if they help you make your case.  And to my conservative friends — now’s the time to join the fight!

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On the Marque, 11/19/2009

Because it’s been too long since the last one.

• As regular readers will know, I’m incredibly passionate about the Orwellian freakishness that is the health insurance mandate in Obamacare.  Unfortunately, it’s so wrong on so many levels, it’s sometimes hard to explain why without being, well, verbose (ahem).  Luckily, there are writers whose clean language, pure logic, and persuasive arguments demand fewer words and more attention.  Read Shikha Dalmia.  (And while you’re at it, read The Black Commenter).
• Michael Gerson is not a raving right-wing ideologue.  He is, however, very scared of where Attorney General Eric Holder is taking us as a country.  You should be, too.
• I mean, the dude said “it depends” when asked if Osama bin Laden would be read his Miranda rights.  Seriously?  You don’t know this?  There isn’t already a 20-page memo on “what you will do if you capture Bin Laden?  We’ll decide when it happens?  Incredible.

• Michael Franc gives us the scorecard on exactly how “moderate” these Democrats are, particularly on fiscal matters.  GOP candidates, start your engines.
• And finally, our good friend Head Muscle shares his worthy insights on the two Koreas.  It’s a moving read, and it subtly explains why we conservatives fight the statist, totalitarian impulse with such vigor.  The world gives us — history gives us —  these irrefutable case studies, yet the theories (and the oppression) persist.

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The Health Insurance Mandate: In Case There Was Any Doubt…

The House Ways and Means Committee confirmed today that the mandate provisions in Pelosicare will follow the form we’ve all expected: obey or go to jail.  While it’s an unconstitutional, brutal, and outrageous provision, it does crystallize the legal issues in a way the Senate bill does not.  These people have abandoned any pretense of addressing public concerns.  They want their power and they want it now.

For those who are following the mandate saga, there were some outstanding contributions to the debate in recent days:

• James Capretta explains how the unprecedented mandate hides real costs in the program, to the tune of $1.5 trillion.
• Ken Klukowski lays out the case for unconstitutionality in the Politico.
• The whole letter from the Joint Committee on Taxation is worthwhile reading, as it lays out exactly what happens to an American who fails to comply.  The picture painted is frighteningly similar to the image I first got when thinking about this issue: debtor’s prison.

See my previous commentary on the health insurance mandate here, here, and here.

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The Health Insurance Mandate: Why Constitutionality Matters

As you know, this blog has explored several ways whereby the proposed mandate that everyone obtain health insurance is unconstitutional.  Ignoring entirely the advice of this blog, the Senate Finance Committee reported out a bill that included a mandate, albeit a watered-down one.  In fact, it appears that any bill that will be voted on by Congress this fall will contain a mandate for individuals to obtain health insurance.  This begs the question – if a health insurance mandate is passed and signed by the President, what does it really matter?  Sure, Congress has pushed the envelope of constitutionality in the past, and rarely has it been struck down.  But isn’t this just an academic debate among legal eggheads?

Sadly, the answer is no.  Passing an unconstitutional health care mandate can only poison American politics, whether it survives a court challenge or not.  Let me explain why.

Nightmare Scenario I:  A Health Care Mandate Withstands Court Scrutiny

American jurisprudence is essentially a process of accretion. Accretion is a word used more frequently in geology, describing the layering of rock over the ages.  Imagine yourself standing on the edge of the Grand Canyon, staring at the wondrously colorful scene.  You see before you the dozens of layers of soil, rock, and sand that have been laid down, one upon the other, over centuries.  At the time each layer was established, those who were there to see it knew only of the layer being created, or of the layer beneath.  With a little work, they could dig slightly deeper to see one or two layers below that.  But they stood on all the layers that went before them, even if they never saw them.  They may have heard stories of them, or seen pictures, but they could not truly know the deepest rock upon which they stood.  And the same goes for you — though you stand on the top of all the layers laid bare by the Canyon, walk away and you will know only the rocks of yesterday, and the soils of today.

So it is with the law.  We like to think of philosophies like originalism and natural law as a harkening back to the way things used to be, but in many ways that’s not correct.  No serious legal thinker today advocates a return of U.S. law to the way it was at the time of our founding.  Sure, the concepts of checks and balances, separation of powers, federalism, and limited government spring from the constitutional well, and we would be wise to drink from it more often.  But while James Madison did not preconceive the Federal Communications Commission, he also couldn’t conceive of the telephone.  Jefferson’s dream of an agrarian society did not include ConAgra or ADM.  And while Lincoln’s vision for America included a transcontinental railroad stretching across the frontier, his imagination could not stretch as far as the moonshot at the center of JFK’s New Frontier.  This isn’t a pitch for a “living constitution,” but it is a recognition that the very things we consider America’s greatest achievements have always forced America’s political leaders to adjust the structure of our government to fit the circumstances.

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The Health Insurance Mandate: Is It Involuntary Servitude?*

In an earlier post, I explored whether the Obama health insurance mandate was constitutional in a positive sense — is the federal government empowered to take this action?  But through the very interesting debate that resulted from that post, it occurred to me that there is a second question that needs to be asked.  Does the Constitution affirmatively prohibit such a mandate?

The Thirteenth Amendment to the Constitution is one of the simplest and most morally-defensible principles in our charter:

Section 1.  Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2.  Congress shall have the power to enforce this article by appropriate legislation.

Pretty easy thing to avoid, no?  No American shall be forced against her will to serve another.

As an initial matter, let me be clear – I am in no way suggesting that the severity, cruelty, and horror of human slavery is comparable to the relatively-minimal cost of the health insurance mandate on most Americans.  What I am comparing is a principle, and it’s the principle that is prohibited in the Thirteenth Amendment.  At an elemental level, the two practices are the same.

In the form of slavery practiced in the United States in the 19th Century, a man was born or brought into this country with an obligation to serve another.  His service demanded that he expend at least some, if not all, of his energies, time, and labor on the tasks he was given by his master.  In exchange, he was usually given the basic needs for human survival – food, clothing, shelter – but not much more.  If he failed in his duty, the law allowed him to be punished.  If he fled that obligation, the government would hunt him down and force him to return to servitude.  The man could do nothing to pay his debt or satisfy his obligation – he was bound for life.

Consider, now, what Obama’s health care mandate requires you to do.

You must, from the day you become a citizen of the United States, labor to earn money to pay a health insurance company.  In return, you are given a promise to pay for most health care services you require.  You are coerced to remain in this relationship under penalty of law.

If you become unable to work, you must still seek health insurance from the government (if you are poor, from Medicaid) or spend your savings on health insurance (for those who are not poor).  If you fail to do so, you will be punished by the government.  If you lose your job, you have no liberty to choose to forego health insurance to pay your mortgage, or buy food for your family, or keep your daughter in college.  If you fail to keep your health insurance, you are a criminal.

This obligation begins, for most of us, on the day we are born.  Most children will be covered on their parents’ policy, but their parents will immediately be forced to work harder to pay their children’s legally-enforceable debt.  If the parents stop paying, not only will the parents be liable, but so will the children.  An infant without health insurance will be a fugitive from justice.

When we grow up and become independent (if not sooner), we will be expected to lift the yoke of health insurance off the shoulders of our parents and begin paying for it ourselves.  Nevermind that this might happen in our teens, or that we’ll be lucky to pay for pizza delivery to our freshman dorms — the government will demand that you pay for your health insurance first.

If you have a conscience-based objection to the insurance required by the government, you cannot follow your conscience and forego coverage.  If you can’t stand the idea of purchasing insurance that covers abortion, you will be punished by the law.  If you think a man should stand on his own two feet and refuse to accept “welfare” like Medicaid, you must spend your last dollar on health care or face indictment.

If a health insurer sees that you have stopped paying your premiums, he has a vested interest in snitching to the government, hoping that the threat of law enforcement will get you to start paying again. If the threat isn’t enough, the government can act to force you to get insured or lose your remaining liberty.

If you ever let your health insurance lapse and the government fines you, you’ll be forced to tell future employers that you have been convicted of a crime.  Even if you never used any health care during the lapse, your non-payment of premium is a criminal matter.

In short, under the Obama plan, you can never escape your health insurance masters – you can only choose which master you wish to serve.  If you ever lay down your shovel and try to walk away, your government overseer will find you, punish you, and put you back in line.

***

We are a society that is blessed in countless ways.  One of those blessings is a total ignorance of human bondage.  In other countries, marriages are enforced like servitudes.  In Africa and Southeast Asia, classic 19th Century slavery is still practiced and, to some degree, countenanced by the government.  Even in some Western democracies, citizens are forced into petty private obligations at the government’s whim, small sacrifices of liberty for the common good.

As much as we often decry the loss of freedom in the U.S., we are an astoundingly free people, particularly in the commercial arena.  We are allowed to organize our lives in innumerable ways, and the government largely stays out of the way.  One of those ways is health care.  Most of us go the easy way, taking the insurance offered at the office, muttering curses at the co-pays but largely happy with the care.  Some smaller percentage of us do other things, others take advantage of government programs, and a small but not insignificant group opt out of the insurance market altogether.  Does this liberty cost the nation?  Yes – all liberty does, because liberties imply the right to make mistakes.  But We the People decided some 232 years ago that the costs didn’t matter – we wanted freedom.  We fought the bloodiest war in American history to extend this freedom to everyone.  We endured decades more of strife and struggle to break the cords of bondage forever.

Surely – surely – our first black President isn’t about to be the first to sign into law an act of Congress that abridges the Thirteenth Amendment?

*this post used to be entitled “The Health Insurance Mandate: Is It Slavery?,” but some friends pointed out that involuntary servitude is the more precise term.

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The Health Insurance Mandate: A Policy in Search of a Power

The federal government has three ways it can obtain a law-abiding American’s property:

1.  It can tax you.  Taxation is the power of the government to force transfers of cash from owners to itself.  It is a broad power, expressly stated in the Constitution:

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 of the United States . . . .

Sometimes the government takes your cash on the basis of your income.  Sometimes the government takes your cash because you bought something, like cigarettes or gasoline. Sometimes the government takes your cash when you trade with other nations.   And sometimes the government takes your cash because you die.  But if the government taxes you, it is always the direct recipient of the money – at least for a moment, before it spends it.

2.  It can take your property (and pay you for it). Eminent domain is the power of government to force transfers of property from owners to itself or its designees.  A little-known fact — the power of eminent domain is not in the Constitution itself.  Rather, it was presumed by the Framers to be an inherent power of government, but one that needed to be controlled.  Thus, the Fifth Amendment prohibition on uncompensated takings:

No person shall…be deprived of life, liberty, or property, without due process of law, nor shall private property be taken for public use, without just compensation.

Here, the Framers were striking back at the abuses of the British government, which occasionally took private property for use by the Crown, without compensation.  And when the Fifth Amendment says “property,” it means the tangible stuff — your real estate, your tractor, your great aunt’s buffet, you name it — just not your money.  That only makes sense, because when it comes to the “just compensation,” unless the property owner agrees otherwise, it’s always going to come in the form of cash.

One small change in practice since the days of the Founders has been the designation of some limited private parties with the right of eminent domain.  In these cases, the government usually grants heavily-regulated companies (railroads, power companies, telecoms) with a limited right to exercise eminent domain in furtherance of a public utility.  But even in these cases, the private party must demonstrate that the taking is necessary for a public purpose; it can only take tangible property (not cash); and the taking must be justly compensated with cash.

3.  It can regulate your commerce (and take your cash in the process). Since the advent of the 20th century, Congress has done remarkable things through its Article I power to “regulate Commerce . . . among the several States. . . .”  It has regulated the financial markets, ensured the safety of foods and drugs, prohibited pollution, protected endangered species, and imposed workplace rules.  In each case, it requires a person or corporation performing a certain activity to perform it in a certain manner.  For example, if a mining company chooses to employ workers in mining, it has to properly train them and give them certain equipment necessary to do their jobs safely.  The government does not require anyone to actually mine — that is up to the company — but if it chooses to mine, it has to do it right.  Similarly, if a steel mill wants to operate, it has to get an air pollution permit.  That permit might require the company operating the mill to pay certain fees to the government, but only because it wants to operate.  If instead it shuts down the mill and didn’t doesn’t emit pollution, it doesn’t have to pay the fee.

Does this sound elementary?  Maybe so.  But if President Obama’s health care plan is enacted as described, it will attempt to create a fourth way for the federal government to take your property.  Let me explain why.

Our good friends at American Missive took aim at our President’s latest easy target: his claim that his “excise tax” on those who refuse to buy health care under his plan is not a tax.  Let’s look at his explanation:

Frankly, I agree with the President.  This is not a tax.  A tax requires a property owner to pay cash to the government to pay for public services or debt.  In this case, the only time the government gets cash is when it fines the individual for failing to obtain health insurance.  That’s not a tax — fines are an act of law enforcement.  Even if one gets fined here, he still has to pay a private party for health care.  So, President Obama, you’re right — this is not a tax.

So, one has to ask — which of the other two options is it?  Let’s take the easy one first — it’s definitely not an exercise of eminent domain.  Why is that an easy answer?  Because the transaction doesn’t involve tangible property.  Rather, Obama’s health care plan would require a private citizen to pay cash to a third party for a service (health insurance).  Now, the health insurance mandate does bear one similarity to the eminent domain option.  Only the eminent domain option allows government to invest a non-governmental entity with the ability to act in the public interest — the government can’t give private parties the right to tax or regulate.  But remember why the eminent domain option exists — to allow the government (or its designee) to obtain specific tangible property that it needs for public purposes.  That need isn’t in play here, so eminent domain is off the table.

So we’re left with Congress’ power to regulate interstate commerce.  To be sure, this power has been a carte blanche for Congress for almost 100 years now, so one might be tempted to end the analysis right here.  But even a broad-minded advocate of the Commerce Clause has to acknowledge that the health insurance mandate is entirely new territory.  Why?  Because it regulates a citizen’s existence, not her activity.

If you want to understand the outer limits of the Commerce Clause, it’s best to head to the wilderness.  Consider, for example, whether the proposed regulation would apply to a person who effectively opted out of all commercial activity, pitched his tent in the woods, caught or grew his own food, and did everything in his power to avoid the rest of humanity.  Obviously, such a person is not engaging in interstate commerce — he’s not engaging in commerce at all, in fact.  The closest he comes is when he kills his food (he might be shooting a spotted owl, after all), but that’s a debate for another day.  Regardless, our man in the wilderness is NOT consuming health care and driving up the costs for the rest of us.  But under the Obama plan, he would still be subject to a fine for failing to obtain health coverage.  Our man in the wilderness isn’t undertaking any activity, or availing himself of a privilege — he is surviving, plain and simple.  When Congress has attempted to criminalize activity that is inherently intrastate (as this man’s would be), the Supreme Court has struck down those regulations (U.S. v. Morrison; U.S. v. Lopez).

Consider three scenarios where Obama’s fine would apply.  We’ve already considered the first — the person who never seeks health care or insurance.  It’s impossible to conceive of how that individual might impact interstate commerce, but it’s also difficult to conceive of such an individual in today’s society.  So we move to the second example — the person who always pays cash for health care.  This was the model for health care payment as recently as fifty years ago.  Is it possible that such behavior — which creates no public debts, nor imposes higher costs on the insured — has such an irresistible impact on the health insurance industry that it can be subject to civil enforcement?  The third scenario goes to the individual who has health insurance, but not a plan that meets all the bells and whistles required by an Obama regime.  If a conservative Christian refuses to carry health insurance that covers abortion or contraceptive services for religious reasons, does her conscience-based alternative create consequences for interstate commerce?  She pays her premiums; she covers her co-pays; and yet her business transaction is one worthy of national regulation?

But this all ignores the more fundamental question: Can the federal government require a citizen to pay cash to a private party for services he does not wish to receive, and if he refuses, penalize him? Such an act would be unprecedented for the federal government.  It is so unprecedented that, to my knowledge, it has never been tested in the federal courts.  I would argue it’s never been tested because no prior Administration would ever argue it was possible.  It’s not taxation — the government isn’t getting the money.  It’s not eminent domain, because no tangible property is being exchanged.  And it’s not regulation of commerce, for the burdened citizen is not seeking to engage in the commercial transaction being regulated.  So what is it?

I’ll tell you what it is — it’s unconstitutional.

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