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March 29, 2012


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Charles Paul Hoffman

Thanks for the story!

On a different note, my wife, who is not a lawyer, but who has been following the case closely, was infuriated yesterday by the Solicitor General's complete failure to answer one of the justice's question (I want to say Kennedy) about whether a child can be said to be in commerce from the moment it is born, such that it is required to have health insurance. She immediately made the connection, perhaps not obvious to we males, that the child's birth is itself (in almost all circumstances) in interstate commerce: upwards of 99% of births happen in hospitals or birth centers, which are highly regulated and which purchase goods and services from across the country/world. In its first days of life, that child will receive substantial health care, billed in its name. A few months later, it will start getting state-mandated inoculations. So, yeah, children really are born into interstate commerce...


Of course, you can argue that you used health insurance. However, odds are still against it and hence the premiums should be lower. The very fact that the argument for making young people get health insurance is to diversify the risk says that they are paying for more insurance than they are consuming (as a group).

Mark A. Edwards

A useful anecdote, and Charles's point is an extremely good and -- purely in retrospect for me -- obvious one as well.

Also, we now have a new nickname for Scalia: Toxic Megacolon.


That has NOTHING to do with the constitutionality of the mandate, despite being an avid supporter of health care for everyone, the arguments were about whether the law is constitutional not if it is right or wrong. The issue of health care should not now nor ever be touched by the federal government, give incentives to states to fix health care problems as each state is different and has differnt problems, I know lawyers don't like to hear it, but TORT REFORM would help significantly lower medical costs, but is it constitutional? This is a great debate but we as Americans should not give the Federal Government the ability to continue taking powers they were never meant to have.


Two markets:
1. Health care providers
2. Insurance
To pay in the first, you may or may not need to be in the second.
A common mistake: auto insurance is mandatory. It isn't (usually). What is required is proof of MINIMUM FINANCIAL RESPONSIBILITY. That requirement can be satisfied in any number of ways that don't involve insurance.
Tax the public and pay for Medicare for all. But don't compel me to enter into a contract with and give my money to a for-profit, unscrupulous insurer.
If Congress can order A to give money to B, then there is no limit. That isn't a tax. It is an outrage.


It is a fundamental right to decide whether to enter into a contract and with whom one will contract.
Regulation of the quality/characteristics of goods in the market? Has nothing to do with the buyer's right to purchase or not purchase.
If the only autos in the market have seat belts owing to regulation and I want one without seat belts then I don't get to own a car. Period. I can't be forced to buy one I don't want.
Even essentials, like food and medicine, are regulated.
So what? If I want tainted milk, and none is available, then I don't get to buy tainted milk. That doesn't mean I can be forced to buy untainted milk.

David Bernstein

This sort of situation is a real concern, and would explain why Congress passed a law trying to give everyone coverage for unexpected, catastrophic situations based on actuarial risk. Oops, Congress didn't do that! Congress instead required young folks to pay community rates, and for coverage of lots of routine care, including, most famously, birth control pills.

Mark A. Edwards

Anon -- no one is forcing you to buy anything. You don't want to purchase insurance? Don't. But because your free-riding behavior is likely to cost the rest of us a lot of money, you'll have to pay a tax penalty, which we will generously set aside for you so that you can use it when you get sick. There is nothing remotely unconstitutional about that.

David -- if your argument is that Congress could have drafted a better law, it doesn't belong in court. Or should courts invalidate every law you don't like?

Mark A. Edwards

Although I will add that since the conservative justices no longer seem much interested in the rule of law, you are likely to prevail.


Mark: I don't think your post reflects an understanding of cost-shifting, risk pooling, "acturial risk" or the reality of the situation that Congress created a long time ago...
Medicare, which pools all seniors in a government program, i.e., those most likely to consume health care, permits private enterprise to reap the profits on those who do not consume at the same rates.
The number of uninsured is a problem. The cost structure in the health care industry is a problem. The bks caused by those inequities are a tragic situation that cries out for a resolution. But that resolution is not to ignore my points about the Commerce Clause. If Congress had no authority in the first place to compel contracting, then it has no power to punish the failure to comply with the mandate.
As I said, tax and provide Medicare for all. Everyone agrees that Congress could have done that.
Your ad hominum attacks are really inappropriate.
I pay an amount every month for health insurance that resembles a mortgage payment.
It is because I understand the flaws in the PPACA that I oppose it.
Among those flaws, it is simply an overreach to compel the transfer of money from me to a health insurer.

David Bernstein

@Mark, near as I can tell, the post wasn't about the constitutionality of the law, except for the last throwaway line about interstate commerce. I think your point operates in reverse--a lot of the arguments have been "it's a good (or at least good enough) law, Congress could have accomplished the same ends through only slightly different means, so why let some technicality [that is, the Commerce Clause] stand in the way?


Mandate on the merits: good idea?

Mark A. Edwards

anon -- I think I understand insurance and risk sharing pools pretty well. You can look up my work on them. I can't look up yours, of course, because you are anonymous.

David -- I think there was more than a throw away line at the end about interstate commerce. I quote:

"That is, no real lasting effects except the risk, that I'll live with for the rest of my life, that at any moment I can return to the hospital again with an abdominal obstruction, something people who have had both have said is pain that's comparable to childbirth. It's happened three times over the past 18 years (on top of twice in the first year following the incident) and could never happen again . . . or could happen while I'm writing this blog post.

My year of treatment back in 1993/1994 cost several hundred thousand dollars, possibly close to half a million. My three subsequent hospitalizations probably approached that amount as well. I have been hospitalized in three different states and cared for by doctors in at least two others. Forget about the aggregation principle from Wickard v. Filburn. I alone have had a substantial effect on interstate commerce."

Do you think his insured status has no effect on interstate commerce?

Mark A. Edwards

And I should add to both anon and David an apology for the strident tone -- it's been a strange week for people like me who expected a very different, and I think better faith, discussion of these issues at the SC, and I got a bit testy. Good advice to for me: never comment testy. Best wishes.

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