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Subject: Why the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional.
PlatypusMaximus    12/10/2009 11:50:12 AM
"Yesterday The Heritage Foundation?s Center for Legal and Judicial Studies released a Legal Memorandum written in conjunction with Georgetown University Law Center Professor Randy Barnett and Nathaniel Stewart explaining: Why the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional. Introducing the paper, Sen. Orrin Hatch noted: James Madison said that if men were angels, no government would be necessary and if angels governed men, no limits on government would be necessary. Because neither men nor the governments they create are angelic, government and limits on government are both necessary for ordered liberty. Politics may tell us what we want to do, but the Constitution tells us what we may do and we must keep those separate. The ends do not justify the means for one simple reason ? liberty. Liberty requires limits on government power, it always has and it always will." On October 23rd, a reporter asked Speaker Nancy Pelosi (D-CA): ?Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?? Speaker Pelosi shook her head and before moving on to another question replied: ?Are you serious? Are you serious??? Pressed for a more substantive response later, Pelosi?s press spokesman admonished the reporter: ?You can put this on the record. That is not a serious question. That is not a serious question.? The Congressional Budget Office (CBO) disagrees. In 1994, the CBO said of an individual mandate to buy health insurance: A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States. An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government. As much as Speaker Pelosi may wish otherwise, the CBO is dead on: the Supreme Court has never validated a federal power as intrusive as forcing all Americans to purchase a service due to their very existence. Sure, the Supreme Court has said that Congress may regulate a farmer?s production of wheat even if he never plans to distribute it off of his farm, and the Supreme Court has said Congress may ban the possession of Marijuana even if it is for personal use, but never before has the Supreme Court said the power to regulate commerce enabled Congress to force an individual to do something just because he existed. In fact, the Supreme Court has always been clear that the Commerce clause must have some limits. In United States v. Lopez (1995), the Court struck down the Gun-Free School Zones Act, which attempted to reach the activity of possessing a gun within a thousand feet of a school. In United States v. Morrison, it invalidated part of the Violence Against Women Act, which regulated gender-motivated violence. In both cases, the Court found the regulated activity in each case to be noneconomic; it was outside the reach of Congress?s Commerce power, regardless of its effect on interstate commerce. The case for the constitutionality of the individual mandate is far weaker than either of these two cases. Congress was at least trying to regulate an individual?s activity in the cases above. But the mandate does not purport to regulate or prohibit activity of any kind, whether economic or noneconomic. To the contrary, it purports to ?regulate? inactivity. If the individual mandate is Constitutional, then Congress could do anything. They could: require us to buy a new Chevy Impala each year to support the government-supported auto industry; require us to buy war bonds to pay for the Iraq and Afghan wars; require us to grow wheat (10 bushels each), or pay someone else to grow your share; require us to buy whatever they want. Many on the left immediately point to state mandates that drivers purchase car insurance as proof of a mandate that all Americans buy health insurance is not new. But car insurance mandates are distinguishable in at least four ways: 1) they are state requirements and states have broader constitutional authority than the federal government; 2) they apply to drivers only, not all Americans (e.g. passengers are not required to carry insurance); 3) drivers use public roads; 4) states only require drivers to insure against injury to other drivers, not to insure themselves against personal injury.
 
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Photon       6/22/2010 12:24:21 PM
The mathematics of universal coverage is not going to work unless everyone is required to contribute.  What you are trying to do in this scenario is to pool everyone's funds together, but knowing that only a fraction of the contributors need medical care in any given time, hence you can socialize the cost.  Actually this is the easy part.
 
Now the harder parts:
 
1.  Under universal coverage, what would be the package of universal/basic coverage that is available to everyone?  Universal coverage does not imply that every cardiac patient is eliglble for bypass operations!  Must decide on what should be included in the universal/basic coverage.
 
2.  Risk analysis (a.k.a. 'death panel'):  American voters and taxpayers should stop playing dumb and realize that we are surrounded by results of risk analysis.  Obviously, signal lights are not installed on each and every intersections.  Likewise, if there are only a limited supply of flu vaccines available, priority goes to the highest-risk group which consist of mostly children and a few elderly.  Likewise, someone who is in his 50s and need a cardiac bypass is likely to get one, but someone who is over 90s is less likely.  The lesson:  Life can be quantified and we have been doing this for ages!
 
3.  Need to change our tort laws.  One of the major procedural criticism towards American healthcare system has been practitioners prone to running so many superfluous tests to avoid the risk of lawsuits.
 
4.  Privatization has not worked wonders for controlling the cost.  Most of privatization fad did not gain momentum until in the '90s.  (Until then, most of our hospitals have been 'community hospitals', not as for-profit companies.)  That was also when healthcare cost started going up faster.  There were even comparative hospital studies done:  A hospital in El Paso and another one a few hundred miles away.  The former depended a lot of its revenue on Medicare, while the latter much less so, however both shared similar patient demographics and psychographics.  It turned out that the the latter had much higher price tag on performing the same operation.
 
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hardcharger       6/22/2010 10:26:14 PM

The mathematics of universal coverage is not going to work unless everyone is required to contribute.  What you are trying to do in this scenario is to pool everyone's funds together, but knowing that only a fraction of the contributors need medical care in any given time, hence you can socialize the cost.  Actually this is the easy part.

 

Now the harder parts:

 

1.  Under universal coverage, what would be the package of universal/basic coverage that is available to everyone?  Universal coverage does not imply that every cardiac patient is eliglble for bypass operations!  Must decide on what should be included in the universal/basic coverage.

 

2.  Risk analysis (a.k.a. 'death panel'):  American voters and taxpayers should stop playing dumb and realize that we are surrounded by results of risk analysis.  Obviously, signal lights are not installed on each and every intersections.  Likewise, if there are only a limited supply of flu vaccines available, priority goes to the highest-risk group which consist of mostly children and a few elderly.  Likewise, someone who is in his 50s and need a cardiac bypass is likely to get one, but someone who is over 90s is less likely.  The lesson:  Life can be quantified and we have been doing this for ages!

 

3.  Need to change our tort laws.  One of the major procedural criticism towards American healthcare system has been practitioners prone to running so many superfluous tests to avoid the risk of lawsuits.

 

4.  Privatization has not worked wonders for controlling the cost.  Most of privatization fad did not gain momentum until in the '90s.  (Until then, most of our hospitals have been 'community hospitals', not as for-profit companies.)  That was also when healthcare cost started going up faster.  There were even comparative hospital studies done:  A hospital in El Paso and another one a few hundred miles away.  The former depended a lot of its revenue on Medicare, while the latter much less so, however both shared similar patient demographics and psychographics.  It turned out that the the latter had much higher price tag on performing the same operation.


You are wrong on number 4, it was NOT privatization, it was a 1985 law authored by Ted Kennedy that established HMO's. Prior to the law, people basically paid 20% of thier cost and insurance which was much less expensive covered beyond that. This enabled individuals and hospitals to weigh proceedures on a personal basis and the patient could weigh the risk/cost. Once HMOs became the norm, everything became an accuary, thus driving up cost, the exact opposite of what the law intended. This forced many community hospitals to either close or privatize for mear survival.
 
Follow that with increased focus on Medicare and the fact that medicare cost soared to 9 1/2 times it's projected cost due to an aging population and health care became a mess. The fact is that ALL MEDICAL COST ARE BASED ON A PERCENTAGE OF MEDICARE.
 
If the government only pays $60 for a medicare patient who has a $100 proceedure, a non medicare patient (Insurer or self pay) would have to pay $140 to keep the hospital, community or private solvent. (Nurses and Doctors need to eat too) As the number of medicare patients requiring that same proceedure grows, the private paying patient has to pay even more, raising the price to $150-$160 to keep pace.
 

 
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