A comment on a comment on health care
Mar. 22nd, 2010 09:44 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
neadodsSeen in just about every newspaper article covering health care: Randy Barnett, a law professor at Georgetown University, said the lawsuits have a chance. "Never before in this country has the government mandated that a private citizen do business with a private company," he said.
Except for
- car insurance
- pre-sale car inspection
- home insurance
- pre-sale home inspection
- drug prescription sales
and more...
Except for
- car insurance
- pre-sale car inspection
- home insurance
- pre-sale home inspection
- drug prescription sales
and more...
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Date: 2010-03-23 01:55 am (UTC)no subject
Date: 2010-03-28 10:32 pm (UTC)SK
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Date: 2010-03-23 02:00 am (UTC)(I agree, I just see why people aren't seeing the connection immediately)
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Date: 2010-03-23 02:04 am (UTC)True. But in every case, the federal government mandates that you deal with at least one, and usually two, private companies to seal the deal. Which (to bring it back to the body) shoots the "Gummit ain't never" argument right in the foot.
ETA - Looking at my list, I'm reminded that we all have bodies, but anyone who wants to put pills into theirs has to buy their 'scripts from a most-likely-privately-run pharmacy.
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Date: 2010-03-23 02:12 am (UTC)no subject
Date: 2010-03-23 05:22 pm (UTC)no subject
Date: 2010-03-23 02:01 am (UTC)no subject
Date: 2010-03-23 02:07 am (UTC)no subject
Date: 2010-03-23 02:04 am (UTC)no subject
Date: 2010-03-23 02:12 am (UTC)The government doesn't mandate that you buy a house, car, or prescription, yes... but if you do, it does mandate that you get certain services from private companies. So the argument falls immediately.
Unlike the rule that mandates people buy insurance, which does not take effect immediately and I hope some more basic insurance will become available before it does.
I miss the days when I had a privately-held insurance policy. Used to be you could get a decent one all on your own, and I was happy as a clam with mine.
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Date: 2010-03-23 02:18 am (UTC)no subject
Date: 2010-03-25 12:59 am (UTC)You aren't even REQUIRED to use a real estate agent, or a lawyer... it's just better if you do. You are not even required to have a title search done, it's just highly recommended because you never know when it's not clear and someone will kick you out.
the FEDERAL gov't does not require you insure your car, that's entirely up to your state and some do and some don't (most do, but not all).
You are not required by any gov't to buy prescriptions let alone any policy on that (oops. scratch that. NOW the federal gov't will.)
As to licensing for cars vs guns, I'm afraid that's because no one has been trying to keep a list of who all owns cars (and what kind) so they can pass more and more restrictions and take the possessions away. Unfortunately, while it sounds very 'conspiracy' it has been said by the gun-licensing people. Every time they get one inch, they rub their hands with glee and say, 'that's one more. now to go on with the next'. They won't be happy until private citizens are not allowed to own any. If it was just simple licensing, that would be fine. shame that it isn't.
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Date: 2010-03-25 10:56 am (UTC)I do think that people are focusing on the "you have to buy health care" and missing the parts where the insurance companies are being ordered to provide affordable policies and the Government will provide subsidies.
My parents fell into the doughnut hole. That, on top of Dad's old company playing "screw the retirees" and the flushing of the economy halving their savings and investments (plus wiping some out) was a major hardship. This bill is of immediate help to them and everyone like them - people who worked hard, did all the right things, and then got shafted in every direction as soon as they were too old to go back into the workforce. For that reason alone, even if the bill meant immediate and horrific consequences to me, I would support it.
The forced purchase doesn't kick in for years - time enough for the details to be hammered out in courts and the insurance companies to be leveraged or forced back into providing the kind of health insurance policy that I nostalgically remember having and miss desperately.
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Date: 2010-03-23 02:16 am (UTC)A related point - I have no idea if the laws mandating car insurance are state laws or a federal law - it actually makes a difference. States (under their own constitutions) can do some things the Federal govt can't.
I am all for everyone having healthcare (even if I dislike the bill - too many compromises, not enough results) but any constitutional challenge to it isn't really implausible or ridiculous.
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Date: 2010-03-23 10:28 am (UTC)Tempting as it is to say "well, if the private contractor is the problem, we can go to single-payer" the real meat to me at the moment is that any challenge does not repeal the biggest predatory actions of the insurance companies - pre-existing conditions, lifetime caps, and all the other ways they find to take money but not return it when required.
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Date: 2010-03-23 02:41 am (UTC)Pardon me for saying, but you Americans are a wacky lot. ;)
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Date: 2010-03-23 10:26 am (UTC)no subject
Date: 2010-03-23 05:18 pm (UTC)no subject
Date: 2010-03-23 11:30 am (UTC)The analysis I'm looking forward to is Josh Marshall's of Talking Points Memo. He wrote yesterday: "the more serious challenges are based on extremely forward-leaning conservative arguments about the 'commerce clause'. It seems very out there. Comical almost. And with your average Court, I would think it a trivial concern. But this Court, particularly the four most conservative members, have shown themselves to be not only so ideological but so activist and even so partisan that I'm not sure you can really put it past them." And that's to be followed up by some reporting in the next few days.
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Date: 2010-03-23 01:34 pm (UTC)no subject
Date: 2010-03-23 02:21 pm (UTC)no subject
Date: 2010-03-25 02:58 am (UTC)But even if all these examples were mandates, they are also all voluntary activities. In contrast, the new health care laws would apply to everyone, just because they exist. To me, this is qualitatively different, and an expansion on previous law. I don't think any of the lawsuits are going to succeed (for legal and policy reasons I don't think anyone here is even vaguely interested in reading about), but I don't think there is no difference between car insurance and mandatory personal health insurance, either.
Also, if you'll read Prof. Barnett's column in the Washington Post, you'll see his argument is a little more complex than the 19-word quote in the AP article. For example:
"But the individual mandate extends the commerce clause's power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company. Regulating the auto industry or paying 'cash for clunkers' is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds.
If you choose to drive a car, then maybe you can be made to buy insurance against the possibility of inflicting harm on others. But making you buy insurance merely because you are alive is a claim of power from which many Americans instinctively shrink."
Do I think people should buy insurance? For their own health and financial security, yes, I recommend buying insurance rather than going bare. But that's a different question, IMO. I think the fact that one requires and affirmative act and involves special privileges directly related to an inherently dangerous activity, while the other involves merely breathing, is pretty significant. I don't doubt that there are good faith arguments on the other side, but I wouldn't say that they're so conclusive that anyone who argues otherwise is a fool.
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Date: 2010-03-25 10:47 am (UTC)And when phrased that way, it's very easy to see why.
But if I've read the excerpts right, it's not just a case of "we're adding yet another bill to your lives, and this one mandatory." It's also a case of "we're going to make sure that there is something affordable for you and give you rebates to help buy that." IIRC, France and Germany operate in this manner - rather than Government-run health care such as in Canada or England, there are heavily-regulated and subsidized private health insurance companies so that people have choice while also having affordable health care.
While a sizeable portion of the country resists the public option for one reason or another, what else can be done to widen insurance coverage? Expanding Medicare would be the public option; so would funding more clinics. (Although that latter is not a bad idea.)
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Date: 2010-03-25 12:37 pm (UTC)My understanding is that along with the mandate come subsides based on household income (not sure what final numbers were settled on). I don't know that there was anything in the legislation that required 'affordability' per se; unfortunately, my understanding is that the bill also outlaws high deductible plans, catastrophic coverage, and other less expensive forms of coverage, which is one reason why the CBO predicts that the Obama plan will increase premiums, rather than decrease them.
what else can be done to widen insurance coverage? Expanding Medicare would be the public option; so would funding more clinics. (Although that latter is not a bad idea.)
The way I see it, the uninsured can be separated into these groups:
1) Illegal immigrants;
2) People with pre-existing conditions so severe that they cannot got even more expensive coverage;
3) People who are genuinely too poor to afford a plan;
4) People who could afford a plan, but chose not to have one (mostly young, healthy people without children or major financial assets).
The answer is different depending what group we're talking about. Unfortunately, I need to run off to work, but I'll try to elaborate when I get home.
The point of Prof Barnett's statement, however, is that he believes it's an unprecedented expansion of congressional power, that perhaps is not constitutional, and is at least something to be concerned about. I take it from your replies in this thread that you believe that, because some people don't have insurance, whether Congress has the power to reach this far into a private person's affairs isn't a serious concern--at best, it's all about process, and what's process compared with human suffering. I can see your perspective, but my response would be: the Constitution is mostly about process (Under what circumstances can the government seize your person or possessions? When can government come into your home? Limit your mobility? Tell you what you can say, who you can associate with, how you may live? These are all due process questions).
Due process is an essential civil right. None of us want to live in a world where the government has no check on its power to order our affairs, and indeed, this is why the Framers put limits on each of the branches, and on the powers of the federal government as a whole. The limit on Congress's power to simply step in and do anything it likes, no matter how benevolent the intent, is the cost of living in a society as free as the United States.
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Date: 2010-03-25 02:11 pm (UTC)I am an unabashed New Deal Democrat, always have been. My belief is that part of what we pay for in taxes should be returned to the people in education, health, infrastructure, and safety via organizations (cops, firemen) and regulation.
More later - need to clear the machine.
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Date: 2010-03-26 12:20 am (UTC)If the government can use your economic inactivity as Commerce Clause justification to forcing people into business arrangements against their will, I don't see much of any constraint against that power, and there's no guarantee that power will always be used for laudable goals. Once you give that power to Congress, you give that power to every possible Congress. The arguments against locating justification for this law in Congress's power to tax are similar. And I think, basically, that that's what Barnett was getting at. It's what stood out to me, anyhow, and why I think this legislation is a bridge too far in the balance among the power of the federal government, the power of the state government, and that sphere left to individuals.
no subject
Date: 2010-03-26 10:38 am (UTC)Fair enough. I can see that argument, and between thee and me, I expect that clause to be massively amended, although I don't know if it will be in the direction of private insurance across state lines (I'm all for that, actually; my car insurance is out of PA), or the public option. I don't think the general welfare will be made better if whole states can opt out entirely, though.
Your other comment is long and thoughtful and needs a response more long and thoughtful than I can give you in a quick email check before work, so I'll get back to that tonight.
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Date: 2010-03-26 01:02 pm (UTC)The Commerce Clause or the health care bill?
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Date: 2010-03-26 10:57 pm (UTC)no subject
Date: 2010-03-26 01:13 am (UTC)As I said, I think we're talking about 4 core groups:
1) Illegal immigrants;
2) People with pre-existing conditions so severe they have difficulty obtaining coverage;
3) People who are genuinely too poor to afford a plan;
4) People who could afford a plan, but chose not to have one (mostly young, healthy people without children or major financial assets, but also a non-trivial number of families making 3x the poverty level).
This is not counting the number of people who are receiving Medicaid or Medicare, but mistakenly term themselves 'uninsured' when they answer the survey, because they're thinking about private insurance (typically referred to as the Medicaid undercount, which could be as high as 6 million, depending on what survey numbers you start with).
For group one, I don't think much can be done, realistically, because of the widespread popular opposition to providing anything other than emergency services to illegal immigrants, and I don't think it's likely to change. Private charity is probably the best option.
For group two, high-risk pooling/re-insuring may be a workable option, along with subsidies, or a flat-out new welfare program (something like the kidney dialysis rule).
For group three, some of these people are eligible for Medicaid or S-CHIP but not signed up (this may be 4 million or more). Some of these folks are hovering minimally above the current eligibility level, and could be helped by subsidies or a tax credit for insurance purchase. They'd also be helped by catastrophic coverage plans (which unfortunately appear to be outlawed by the new bill).
They'd probably also be helped by taking steps to lower the cost of insurance generally, which is largely based on the increasing cost and utilization of actual medical services in the US. We consume a great deal (more than Europeans or Canadians), what we consume is new and better than what they tend to consume, and we're very insensitive to the price of it because most of us have employer-provided health insurance. Actually slowing the growth in the cost of health care itself would probably be a big help, and we, as a nation, really need this if we're going to avoid a Greek-style fiscal catastrophe in the not too distant future (as the retirement of the Boomers increases consumption of health care while lessening the pool of workers available to provide taxes to pay for the care). I think the best possible option would be to find a way to break health insurance away from employment. This would eliminate the job-lock problem, and give people incentive to begin to shop around for plans, which should lower costs (the new bill's exchange is built on this idea, though on a much smaller scale). Retaining high-deductible and catastrophic care plans (instead of eliminating them, as this bill does) should also help with price sensitivity, as people in those plans will look not only at the cost of overall plans, but for individually purchased services, which should further encourage competition (though limited to preventative and non-emergency services). And allowing plans to be sold across state lines would help with competitiveness, too. I think there's some marginal utility in tort reform, though not as much as most proponents claim.
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Date: 2010-03-26 11:09 pm (UTC)Groups 2 & 3's insurance prices are supposed to be partially subsidized by bringing group 4 into the pool. IIRC - and I haven't read the bill yet - portions of group 3 are going to get subsidies, while other portions (up to 133% the poverty rate) will get a pass into Medicare.
Actually slowing the growth in the cost of health care itself would probably be a big help
This is a mammoth requirement. Hopefully one to be addressed, as the politicians themselves repeatedly point out the sizeable number of people going medically bankrupt *even though* they have insurance.
I will also plump for breaking health insurance away from employment (see my One Woman's Story post) *IF* reasonably-priced policies can be made available. I also agree with selling policies across state lines (as mentioned before, my car/home insurance comes from another state) again *IF* reasonable accommodation can be made. It's no good to have a cheap policy that asks you to drive 400 miles to see a GP.
It's also no good to have a high deductible plan if it's the only one you can afford... but you don't actually get health care because you can't afford the deductible. I know people who do that with their cars, so it's not a stretch to believe that they're also doing it to their bodies.
To lump your next comment into one, it would probably be a wise thing to lump health incentives into policies - perhaps a rebate or a lower cost, along the lines of a "safe driver discount" - but there would have to be both tight regulation and a major PR campaign. Right now, that wouldn't be possible in a country where babies are dropped for being "obese" and people are having pluperfect fits about Michelle Obama's and Jamie Oliver's healthy eating campaigns. (The papers have had a graphic review of the first episode, which includes showing school kids exactly how chicken mcnuggets are made and out of what, and them *still* eating them in preference to the recognizable chicken meat.)
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Date: 2010-03-26 01:13 am (UTC)You could also ask the question differently: what could be done to improve health outcomes (as opposed to making sure that everyone has an insurance plan). Given the evolving, contradictory nature of much of the research in this area, I think it's a point to ponder.