Question for Supporters of the Individual Mandate
Can I just get an admission that this makes the so-called individual mandate look pretty ridiculous?
The individual mandate — that is, the affirmative requirement that all people must purchase health insurance from a given list of programs — is now under fire for its doubtful constitutionality. Never before has Congress declared that a person’s inaction (on a matter only indirectly affecting interstate commerce!) is a proper subject for congressional regulation, and that failing to purchase a government-approved product is a regulable activity… er, a regulable inactivity.
Here’s the trouble as I see it. Make inaction regulable, and anything can be made compulsory. Anything! Inaction includes a virtually limitless number of things that I’m not currently doing, and — with respect to my inaction — Congress would appear empowered to direct me otherwise.
On this theory there is no limit to the economic activities we might be forced to undertake, all because not doing them might affect interstate commerce: You failed to shop at Wal-Mart, a firm that engages in interstate commerce. We therefore direct you to shop at Wal-Mart, under the authority of the interstate commerce power. You failed to drink enough Coca-Cola, so now you must go buy (and consume) more of it. Aaaand you failed to provide at least 20 hours of slave labor last month — slave labor whose product could have entered the stream of interstate commerce, if only you had done it!
I trust the last is merely an absurdity. But where would supporters of the theory draw the line? There is a difference between prohibiting an action and compelling one — and the latter is much more of an attack on individual liberty. Nor does the usual analogy to auto insurance hold up — auto insurance is a product tied, at the state level, to another very clearly related set of actions — owning and driving a car. Compulsory health insurance applies to everyone, merely for being human. Surely this is a relevant difference.
Even compulsory tax payment isn’t as bad as the compulsory purchase of a product. People ordered to pay taxes can often act to avoid the tax, to minimize its burdens, or at the very least to secure the tax money through a very wide variety of different means. This leaves citizens relatively to their own devices. Ordering people to purchase a particular product or set of products does not allow any of these freedoms.
In the linked post, Professor Orin Kerr describes one possible fix here — rather than claiming to regulate inactivity, which is how it stands right now, the law might be amended to regulate inactivity in conjunction with some action that has already been found to be a part of interstate commerce, such as:
a) Congress prohibits the affirmative act of crossing state lines after having failed to purchase health insurance.
b) Congress prohibits the affirmative act of using a means of interstate commerce, such as the Internet or the telephone system, after having failed to purchase health insurance.
c) Congress prohibits the affirmative act of using the postal service after having failed to purchase health insurance.
d) Congress prohibits the affirmative act of purchasing of any item in interstate commerce after having failed to purchase health insurance.
Note that (d) under current jurisprudence would be tantamount to a direct, affirmative order anyway, under Wickard v. Filburn and the more recent Gonzales v. Raich, which held that economic activity taking place entirely within a given state may still count, for constitutional purposes, as “interstate commerce,” because such activity may have an indirect effect on interstate commerce.
(Of course, by this theory I actually am the Wal-Mart corporation, because my declining to shop at Wal-Mart may have an indirect effect on Wal-Mart. Such are the mysteries of constitutional interpretation.)
In any event, I’m curious what supporters of compulsory insurance think. Which of Prof. Kerr’s options is most palatable to you? Or are you okay with regulating inaction, just by itself, without much concern that it might lead to other compelled commercial activity? What guarantees do you have that you won’t be forced to buy other things in the future too? If this isn’t how you draw the line, then how would you draw the line?
Here’s a good article:
http://blogs.forbes.com/richardepstein/2010/10/18/the-libertarian-challenge-to-obamacare/Report
Well the insurers were engaging in all kinds of fun chicanery involving cancelling coverage after subscribers got sick. Sick people and their mourning relatives suck at lawsuits. Also people with no insurance still get sick and hurt and people really blanch at leaving them on the sidewalk and alleys to die so the costs of those free riders are also conveyed to the people who do pay via increased costs.
So the government leaps in and says if people are sick then the insurer isn’t allowed to deny coverage/service.
But of course this would lead to adverse selection, under these rules no one would buy insurance until they were sick. Insurers would either go out of business or raise rates to unimaginable levels.
Which brings us to the mandate, that was created so that everyone, healthy or no, has to buy insurance so that they can’t game the system.
It sure is messy.
Do you have any thoughts on the compulsory provision of medical care rules aka the ‘We won’t let you die on the street for lack of medical insurance” that seems to be at the heart of this?Report
@North,
Leave healthcare services and insurance to the free market — leave mercy and compassion to charity.Report
@MFarmer, Irrelevant Mike. Pre 1900’s nostalgia is nice but irrelevant Mike, the law is the law. If you’re brought dying into a hospital in the US you’re legally required to be treated regardless of the ability to pay. Do you think that law is incorrect and should be done away with?Report
@North,
If the healthcare laws aren’t repealed and are allowed to progress to their natural consequences, one day you will come face to face with heartlessness, whether directly or indirectly, and then you will understand and pray for charity.Report
@North, Read the question Mike. Employ the reading skills you so often exhort others to use. I have said not one word about heartlessness. I asked a simple question: Do you think that the laws that currently compel medical institutions to provide service regardless of the ability to pay are statist and wrong? Should they be done away with?Report
@MFarmer, what North said. You may be willing to let people die for non-payment, but most people aren’t. And once you take that step, a free market health care system becomes impossible.
That being said, this doesn’t mean “Then we should let the government run it all!” as the only alternative. But we need to be more realistic than letting people die for non-payment if charity does not step up to the plate.Report
@MFarmer, much as I probably agree with you in terms of prescription, I can’t comprehend this kind of attitude.
What you are essentially saying here is that it’s perfectly fine for people’s lives to be at the mercy of the kind of people who, in the immortal words of Freddie, “have had, do have, and will continue to have the kinds of parties where ice sculptures piss $200 a bottle vodka.”
“Charity” is never a solution to anything; it’s a fucking perk.Report
@North, my thought is that you deny coverage of PECs for a period of time proportional (probably 1:1) with how long you were uninsured up to a certain amount (a year, say). Or, to prevent one-month-on, one-month-off, you take the total amount of time they were uninsured over the previous year and deny PECs for that period of time.
The problem as it exists now is that you can have a lapse of 32 days and be denied for a full year (or more). If someone hasn’t been insured for a full year, I don’t have a problem with PECs being denied for a year. But right now you only have to lapse 32, 61, or 91 days (depending on the company) and you’re out just as long as you would be if you were trying to game the system.
Punishing those that accidentally let it lapse seems reasonable, but not nearly that much. And I think that a proportional method would probably cut into gaming of the system as much as the amount being proposed by PPACA.Report
@North,
You have no vision whne it comes to th private sector. And the reactions to this are indicative of the demonization of different ideas.Report
@MFarmer, please don’t take this as demonization or disrespect, as I sincerely want to know.
Where does your vision of what the private sector is capable of come from? Can you site examples of for-profit hospitals doing pro-bono work of the scale we are talking about and not passing the costs indirectly onto paying patients?
The American public is amazingly charitible, but as my sister (who directs charity work for a massive church with lots of money and connections) says, charities don’t have nearly the resources to address the magnitude of need they see. And that’s without asking that they pick up the slack from State programs.Report
@62across,
That’s because so much of our resources are confiscated by the State. You have to understand private assistance from the perspective of a truly free market. The American people would support private assistance and free clinics and charity hospitals if our money didn’t first go through a rapacious welfare state. Most peopl would love to get involved in such activities — they State has restricted this part of human nature, but when released, it’s powerful.Report
@62across, Mike, you’ve stated that much here again and again. Forgive me if I insist that just repeating something doesn’t make it more likely to happen. I’m asking for data to back up your assertions.
I don’t doubt the innate generosity of the American people or question the power of people to effect positive change. It’s not a question of principles or our views of human nature. It is a question of scale. What evidence do you have to suggest that the increase in capacity for private assistance made possible by greatly limiting the State would be sufficient to meet the magnitude of need?Report
@MFarmer, Mike, you appear to be going into a frenzy over nothing. I have imputed no heartlessness to you specifically nor to libertarians in general; I asked a simple question. Your frantic ad-homonyms seem indicative of an insecurity that puzzles me. Are you having a bad day or something?Report
@North,
Actually, I had a good day — the only thing I said was you don’t have vision when it comes to the private sector — the reactions I referred to are the other reactions, the ones which accused me of allowing people to die, not your reaction.Report
@mfarmer, Humph, well I’m the one being accused of a deficit of vision. Now my vision may be deficient but you still haven’t answered the question about whether compelling hospitals to provide care to the dying regardless of ability to pay is an unacceptable statist intrusion into the market. Should it be done away with?Report
@North,
No, not unless we implement a free market, then hospitals should be able to turn away people if they choose to — but they wouldn’t choose to in emergency situation — hospitals that sent people back into the street to die wouldn’t be in business long. Each hospital would likely have emergency funds and plans worked out with private assistance organizations. What I’m talking about is well-funded private organizations which concentrate on social needs like medical care for the poor. But in a free market, the healthcare industry would adjust to meet supply and demand, he economy would be more vital — there would be higher employment and more people would have some type of insurance to cover emergencies. Our society is not going to let people die in the street — we’ll find a way to deal with those problems. If it can be done poorly through the State, it can be done effectively by private members of a community.Report
@MFarmer, Here’s a hypothetical for you Mike – Tomorrow morning President Obama and the entire Democratic causes, plus a couple of Republicans for good measure, announce that they were wrong and are going to completely deregulate the entire healthcare industry and as much of the rest of the economy as required for your to accept that this is a healthcare regime you can’t object to on ideological grounds (you can take that as far as “the whole economy” if you choose). When the consequences of this change finally pan out, it turns out that charity and productivity improvements are not sufficient to provide critically needed care for at least some people. What what you do? Would you still argue that the resulting regime was the fairest thing possible?Report
@Simon K,
One thing I wouldn’t do is continue the same thing which fails over and over and expect a different result each time.Report
@Simon K, Not really an answer to my question, Mike.Report
@Simon K,
It is an answer — it implies “no”, if it turns out to not be the fairest thing possible. If supplemental action is required, and people are dying in greater numbers than they are now, it can be dealt with when necessary — society adjusts to problems when they have the power to adjust — so, what do you do, now, that it turns out that statism is not sufficient to provide critically needed care for at least some people. Do you argue that the existing regime is the fairest thing possible? Or, do you suggest we simply do more of the same?Report
@Simon K, No, I think the current regime is pretty awful and unfortunately the timetable for reform has made it worse in at least some respects. The fully reformed regime after 2014 will be marginally better if the next congress doesn’t start messing with it. I don’t view it as “the same” although I’m not particularly a fan, for reasons you would probably agree with.
Your ideal world and mine probably look very similar. My main worry is how to get from here to there – I’m not happy with “remove the government and all will be well” as a reform program. Absent any program for doing that – for the avoidance of doubt Obamacare is not a step in the right direction – I’m more worried about welfare than whether things are ideologically correct.Report
My question was the question about thingy.
Sometimes my wife and I engage in thingy. I understand, however, that there are people out there who engage in thingy in exchange for money.
Blessedly, my thingy needs are met by my wife. However, for the sake of argument alone, let us posit that if I were not married and had no intention of entering the wasteland that is the dating scene, ethical considerations aside, I could see how a professional thingy provider would have a lot less hassle than some of the other options available (it seems to me that many relationships are thinly veiled closed markets where one party provides thingy in exchange for barter from the other party).
Which brings us to the (thankfully theoretical):
Does this possibility mean that I am adversely affecting interstate commerce when I engage in thingy with my wife?Report
@Jaybird,
Answers:
nope, we don’t care unless you’re eating salt trans-fat laden snacks in the post-conjugal moment in which case jack booted thugs will bust in through your windows and read you the riot act for the sake of your innocent arteries and those of your children.
Your thingy will be supervised at all times by two government appointed officials; one military one religious to verify that you are using it only in a biblically approved manner as interpreted by Pat Robertson and Ted Haggart (pre-gay hooker Haggart not post-gay hooker Haggart). Also we want you to vote for us because we’re reverent believers in limited government and fiscal prudence(the officials will be paid for by borrowing money from China).Report
@North, well, I guess that if I didn’t like it, I could move to Somalia.Report
@Jaybird, Oops, the posting system cut out my captions. The first paragraph was from liberals and the second was from conservatives.Report
@North, I caught that.
I figured it was a bipartisan thingy commission.Report
This issue gets brought up in the _Raich_ oral argument.Report
@Michael, seriously? They talked about thingy in front of the SCotUS?
That is awesome. I presume it was Randy B. who brought up the idea?Report
@Jaybird, Yes. Please go to the _Raich_ oral argument on Oyez and find about 51:15 in through about 51:40 in. I tried posting the link earlier, but it did not make it through the moderation process.Report
@Michael, it’s here:
oyez.org/cases/2000-2009/2004/2004_03_1454/argument
Mr. Barnett: The premise of our… the premise of our economic claim is the nature of the activity involved, not necessarily its effect, but the kind of activity it is.
The idea… for example, you… prostitution is an economic activity.
Marital relations is not an economic activity.
We could be talking about virtually the same act.
And there is a market overhang for… from private sexual relations to prostitution, but we don’t say that because there is a market for prostitution, that, therefore, everything that is not in that market is economic.
Awesome.Report
@Michael,
Here’s the audio/transcript. See 51:36Report
Much simpler, the 16th amendment allows congress to tax as it pleases:
There is imposed a health care tax of X$ per person (actually that is allowed by the original consititution as a head tax). However if you show that you have health insurance you can get a credit up to the amount of the tax for premiums you or your employer pay (or medicare pays). No commerce clause needed no issue here the courts would have to let it go as a legal head tax.Report
There seems to be little or no question that Congress can tax and buy health care for individuals (Medicaid), and Congress can tax and buy private health insurance for individuals (Medicare Advantage). However, there may still be some question as to whether Congress can mandate individual behavior which produces results that are similar — but not identical — to a program that taxes and buys private health insurance for everyone.Report
@Michael Cain, so long as congress has the ability to tax, I do not understand why they cannot simply impose a tax and then declare you exempt if you affirmatively commit some act? We play favorites with our tax code all the time. I don’t see why we cannot “favor” those who purchase health insurance.
The mandate is a problem if you’re going to throw someone in jail for non-compliance, but that hasn’t really been discussed.Report
@Trumwill, The difference, and I grant that it is a fine point that the SCOTUS may decide does not matter, is that what I must spend to gain a tax credit in the other cases is set by the federal government in advance and is consistent. In the case of the mandate, the cost to gain a fixed tax credit (ie, avoid paying the penalty for not buying health insurance) will vary somewhat from state to state and from employer to employer. Would a tax credit with the kinds of variation in what must be spent to claim it that we will see in this case pass constitutional muster?Report
@Lyle,
This was up today at the Volokh Conspiracy and, as I thought the “Individual Mandate” was imposed as a tax with credits for positive action, kind of made all the discussion moot to me.Report
Failure to register for the draft is illegal. So is driving a car having failed to insure it. So, in many places, is walking around having failed to purchase clothing.Report
@Mike Schilling,
The Draft is a government body, not a commercial one.
Driving is not a legally required activity (you can walk, ride a bike, take public transit, or pay others to drive you around rather than buy auto insurance)
There is no legal requirement to BUY clothes, only a legal requirement to WEAR them.Report
@Mike Schilling, there’s a strong argument to make that the draft violates the 13th Amendment.
OWH Jr. doesn’t think so, however.
I don’t consider him to be very good company.Report
@Jaybird,
Didn’t he object to yelling “Fire!” in a crowded theater of operations?Report
@Mike Schilling, indeed. It was the case where someone was handing out pamphlets that said that a draft was a violation of the 13th Amendment in which he said that.
Threw the guy in prison.Report
@Jaybird, I recall asking Wayne Morse this question when in college and he assured me it was under the raising an army clause. (Morse was a liberal senator from Oregon in the 1960s-1970s), Anyway you can as an alternative go to jail which is not covered, just don’t step forward, and the fbi would have come calling.Report
@Mike Schilling, Yet upwards of 1/3 of drivers are uninsured. Witness the need for uninsured motorist coverage and the systems to check at auto license renewable time that you have insurance.Report
Did you know that I have a to pay a government fee because I rent instead of mortgaging a house. I have to pay more in taxes because of that. Tyranny I tell you!Report
by this theory I actually am the Wal-Mart corporation
Le entreprise, c’est moi.Report
A simple explanation as to why the statute is constitutional. Article I, Section 8 of the Constitution empowers Congress to adopt “all Laws” that work toward “promot[ing] . . . the general Welfare.” Individuals who are not insured pose a threat to the general public of socializing their health insurance costs due to the statutory mandates that hospitals treat all comers. Hospitals pass those costs on the other consumers of health care and to insurers and, indirectly, to Medicare. As such, the mandate is a requirement that each individual show financial responsibility for their own health care costs.
There is one other way we could get at the free rider problem and that is to require every adult, on behalf of themselves and their dependents, to show on their tax return that they have health insurance coverage for the coming year or face confiscation of the first $2,000 or so of any income tax return, or a phase down of a deduction, such as the child deduction. You don’t want to buy insurance? Fine, but it will cost you something to cover what government will have to pay to fix your a$$ up if you or your kids get sick.
Personally, I would no problem telling adults that if they don’t have coverage or $100,000 or so in cash (or access to such cash via a letter of credit type instrument), then they don’t get any health care, emergency or non-emergency. This would, of course, tend to concentrate the mind because our current system puts no costs on people who just decided not to buy insurance because they have better things to do with their money. But if we are going to have a “compassionate” society that grants some modicum of health care to all, then it comes at a price to all who might use that system.Report
@B-Rob, Everything the government could possibly do can be justified by common welfare — this is the path to tyranny.Report
“Nor does the usual analogy to auto insurance hold up — auto insurance is a product tied, at the state level, to another very clearly related set of actions — owning and driving a car. ”
Very few people don’t own or drive a car, and I don’t know anyone who, so upset with the prospect of having to buy auto insurance, exercises the right not to buy or use a car.
If you want to make the “this is different from car insurance” argument, I think you need to emphasize that anyone driving a car is potentially impacting the safety of other car drivers. If you have an significant accident, there is a very good chance someone besides yourself will suffer personal injury and/or property damage. So even if you took a laissez-faire, everyone for himself attitude, and didn’t care if someone smashed up his own car and body, you do have to be concerned about his ability to pay for the injury/damage caused to others. Whereas if you get sick, you are less likely to impact others directly (though this is certainly possible in the case of contagious diseases). I’m not saying I completely buy this distinction, but I think it’s a better one for debating.
Another important factor that sometimes gets left out in this discussion is the actuarial situation. Those of us who are middle-aged, or have young children, likely need regular access to the health care system, and thus mandatory health insurance makes sense. People in this group are going to use it. Twenty-something singles are far less likely to need medical care. This is not to say insurance is still not a good idea–accidents happen, and so do unusual diseases–but the cost of their insurance should reflect the far lower risks involved. But it probably doesn’t under the new system.
Again, not saying I accept this argument either, but I like it better than a blanket dismissal of the notion that everyone should have health insurance. I think everyone should have it, but how much they should have to pay for it ought to be up for serious debate.Report
@Andy Smith, If you want to make the “this is different from car insurance” argument, I think you need to emphasize that anyone driving a car is potentially impacting the safety of other car drivers.
Agreed. And this is pretty explicit in the law. I don’t have to insure myself or my own car. I have to insure against the damage that I cause. At least in every state I’ve lived in, it’s not been an “automobile insurance” requirement, it’s been an “automobile LIABILITY insurance” requirement.
Does any state require you to insure against damage to oneself or one’s car?
(That being said, I don’t see a constitutional problem with a mandate along the lines of what Lyle mentions.)Report
@Trumwill, There is one party that does require you buy collision and comprehensive, just like it requires that you buy homeowners insurance, the party who holds the title to the car. You borrow money you have insurance. If you pay cash or have paid off the car collision and comprehensive are optional. (Actualy for an old beat up car they make no sense anyway).Report
@Lyle, That last bit is crucial, though. If you don’t owe a bank money, you are not compelled to protect yourself with insurance. Only others.Report
@Trumwill, you ask “Does any state require you to insure against damage to oneself”?
Yes, Michigan does. Automobile owners are required to purchase PIP coverage to pay for their own medical care if they are injured in a car accident.Report
My problem is that “health care” consists of the time of professionals for the most part (the parts that don’t are another rant).
I don’t think that anybody can be “entitled” to the time/materials of a stranger. A parent? Sure. A child (of yours)? Maybe. A sibling? We can talk about it. A stranger?
What exactly gives you the entitlement to the time of another person? The fact that you will die without it?
I don’t know. I’m pro-choice. “They’ll die without your support” is one of the things that doesn’t move me, particularly.
It makes more sense to call that clump of cells a parasite.Report
@Jaybird, Are you familiar with EMTALA?Report
@greginak, EMTALA was the name of my band in high school.
We broke up.
Artistic differences.Report
@Jaybird, its also an evil, socialistic, fascist, paternalistic, big government law that ignores the rights of doctors and nurses by saying hospitals can’t turn away people who need emergency care even if they don’t have insurance.Report
@greginak, would you guess that this law makes things better or would you guess that it makes things worse or would you guess that there’s no change, really?Report
@Jaybird, Better. There are ways to be better still, but its better.Report
@Jaybird, Hey Jay if you feel the rule compelling service first then cost recovery a distant second is wrong I think that is consistent with libertarian principles. But so many libertarians (and especially the GOP) really won’t touch on this fundamental item in the whole healthcare question.Report
@North, this is the downside to being crazy.Report
@Jaybird, Hey I never said libertarians were crazy, don’t get me in more trouble with Mike than I already am in. I think they’re idealistic but crazy? Certainly not, libertarian ideology always struck me as relatively internally consistent.Report
Thinking you can deal with the real world by being internally consistentis a sure sign of being crazy.Report
@Jaybird,
Jaybird,
Alice is experiencing anaphylactic shock. Bob has an epi-pen that he keeps on him solely because it is pretty and refuses to use it to save Alice. Instead he talks about how awesome his property rights are.
Steve punches Bob and takes the epi-pen and saves Alice.
Is Steve just as bad as Stalin and Hilter or even worse?Report
@ThatPirateGuy, Bob stops showing up to the hangout place.
Alice experiences shock again but this time dies because no one is around with an epi-pen.
Is Bob just as bad as that Chile guy or worse?Report
I find this whole area of debate pretty ridiculous, really. If the mandate is unconstitutional as written, congress will find some way of making it, or something equivalent, constitutional. The distinction between Medicare, in which the government takes my money and buys something for me with it, and the mandate, in which it merely insists that I buy something for myself, seems to be one of those distinctions without a practical difference. While it may not be in accord with the written constitution, it doesn’t seem to violate the principles behind it any more than using my money to buy Predator drones and inland naval bases, neither of which I particularly want either.
Which isn’t to say I like the mandate very much. There are better solutions to the problem of creating a large and random enough insurance pool to make insuring sick people profitable, and in the end I don’t think “health insurance” as currently conceived of is a very good idea. But this seems like a trivializing way of attacking the current plan without trying to put anything better in its place – fine for Republican Attorneys General trying to score some political points for their runs for governor. Not really very interesting for anyone else.Report
@Simon K, that’s not an unreasonable assumption – that if the law is invalidated before it comes into effect there will be an amendment to make it valid – or perhaps which has the effect of rendering the past litigation moot and requiring the various litigants to start over with new suits. I also think it’s more likely that, despite the novelty, the Supreme Court will uphold the law than hold the mandate unconstitutional.Report
I thought the last admission we were stridently looking for was that the individual mandate IS a tax – as written! Because otherwise, it would be, you know, maybe unconstitutional, but if it’s a tax it passes muster. Now we’re saying we want an admission that it’s an unconstitutional regulation of non-action. So which admission do we want more?Report
I’m really confused about this whole health care fine stuff. Can someone (preferably a lawyer or law student) please explain what is wrong with FactCheck.org’s analysis of this law?
It seems like it has no teeth. Can it grow some? (Please read the “Full Answer” part of the link: I’m not trying to point to the 16,500 IRS agents packing heat issue.)Report
@Boegiboe, their analysis seems correct. Part of the confusion is that early on the Obama Administration denied that it was a tax.Report
@Trumwill, Yeah, I think thats the main issue. You can understand why they did it, but they should have taken a leaf from the old Blair/Clinton playbook and said “yeah, its a tax – some things are worth paying for”.Report
The other response here would be that there isn’t any reason that I can see (certainly none given here) why there is a greater line-drawing problem in madating that certain actions be taken rather than not than there is in prohibiting certain actions or regulating others. It’s always a question of what will be regulated/prohibited/mandated – and always lines wll have to be drawn by some method or other. One can equally say, Well if you’re going to prohibit this, then what will you prohibit next? as one can say, If you’re going to compel that, then what will you compel next? The line drawing is the same. It’s fair enough to say that there must just be an inherent presumption that to be compelled to act contrary to one’s volition not to act is a greater violation of liberty than to be compelled not to act in violation of one’s will to act – I get that as an argument. But I don’t see a greater slippery-slope problem in mandating actions than I do in prohibiting or regulating them. Perhaps I can be enlightened.Report
@Michael Drew, I was struggling with the slippery slope argument myself.
I’m no lawyer, but the legal concept of negligence centers on failure to act and not prohibited conduct, does it not? Hasn’t the slope already been greased?Report
It’s sort of like demanding people serve in the army. I always thought the draft was unconstitutional, and the individual mandate is no different. They both punish inaction.Report
@jay- unalloyed good. civilization and basic humanity are a harsh mistress.Report
@greginak, if it honestly were an unalloyed good, it wouldn’t require a law in the first place.
It would just happen.Report
@Jaybird, huh…i didn’t think you were religious. I wonder what they means about laws against beating the shit out of your wife and kids, laws against rape and not dumping toxic waste in the water. i have so much to learn.Report
@greginak, and now we’re walking back from the use of the adjective “unalloyed”?
Fair enough.Report
@jay- ummm huh…when did i do that? No forbidding hospitals from turning away people in emergencies is an unalloyed good. You haven’t shared your view?Report
@gregiank, and I’m saying that if it were an unalloyed good, we wouldn’t need a law forcing people to do it.
If it were an unalloyed good, people would be champing at the bit to get themselves a piece ‘o that.Report
@Jaybird, yes, and people are. But the insurance companies are not. Because there is a profit motive involved that runs contra the public good.Report
@Jaybird, We have laws against rape and child abuse. Those seem to good things to stop but we still have laws against them. We have laws against not dumping toxic waste which seems to be a pretty good idea, but we still have needed laws to stop that stuff.
You don’t really have any argument here do you? Just a bit of, if we don’t have it, then we don’t need it. And people seem pretty happy with the concept of giving medical care to people in emergencies. And you haven’t said what YOU think should happen to people in medical emergencies with no insurance. Just asking questions is easier isn’t it.Report
I’m afraid the initial premise here is incorrect, whatever the merits of the sentiments (and I think the sentiments are sound).
http://www.law.ucla.edu/volokh/2amteach/SOURCES.HTM#TOC33
George Washington required able bodied males to purchase guns.
You can also be ticketed for failure to buckle your safety belt. Nobody bats an eye about that. Didn’t purchase car insurance? There’s a fine.
The flaw in your argument is in your extrapolation. If you make inaction regulable (and as you can see, we have for ages) then you can make ANYTHING illegal!
Well, yes, that’s true; but if you make government able to regulate things, then you can make ANYTHING illegal, too. But government by it’s nature must be able to regulate. And just because you COULD make things illegal, doesn’t mean you will.
The solution, in my view, is to simply make everyone a part of the already-regulated, already mandatory health insurance pool – Medicare.Report
Requiring militia service or requiring individuals to purchase guns in case of war are powers unrelated to the general welfare in any sense at all. They fall under the “common Defence” header, if anything, and more specifically under the congressional power to raise an army. Because that power is specific and enumerated, it gets a great deal more deference.
(Minor comment edit: I see it was 1792, was confused for a moment there about the section you meant.)Report
@Jason Kuznicki, Couldn’t we play the slippery slope game though with “common defense.” The gov could order us all to inform on each other or say its our duty to bend over for TSA rectal exams or some such.
Some of the things in the constitution are just general and don’t give us a specific list of do’s and don’ts for us to follow.Report