So then the amount of money states have been spending on state college must be going down over the past decade or two? Right?
After all if increased Medicaid spending is crowding it out then it must be going down. In a contest of where to cut spending, the problem with pulling out of Medicaid remains 50%. Cutting $100 in spending only saves the state $50 while cutting, say, pension benefits for state workers $100 saves, well, $100.
Sure, I can have a hearing, but I can’t request a jury of my peers and the burden of evidence is far different.
States are not required to provide you with a jury for minor criminal offenses. The Bill of Rights in the US Constitution mostly applies to the Fed. gov't, not the states. After the Civil War amendments most, not all, of the Bill of Rights were incorported to apply to the states.
Scott Just b/c the IRS collects the penalty doesn’t make it a tax. I love your logic though, the IRS collects it so it must be a tax. Who can argue with that kind of logic?
Actually that wasn't my argument. But the fact that the IRS is collecting it AND the law specifically declines to allow the gov't to use any of its powers of criminal prosecution to go after those who don't pay does lean towards viewing it as a tax.
A more potent way to think about it IMO is does the law allow you to opt to go without insurance if you're willing to pay the tax?
Let me put the question in context of a simple hypothetical. A town has a law saying parking in certain areas is illegal and the fine is $50. The town also operates a parking garage which charges $100 on a particular weekend when there's a big event happening.
Now an economist doesn't care about the law, only prices. He may advise his client to park in the illegal space and just pay the $50 fine. A lawyer, though, does care about the law. He cannot advise his client to park illegally. Even though the penalty is trivial, I don't believe a lawyer can ethically advise a client to "do the crime, then do the time" even if the 'time' is pretty trivial.
It seems to me if this is really a mandate rather than a tax, a lawyer would find it ethically troubling to advise a client who simply didn't want to buy health insurance but was willing to pay the penalty to do so.
And also the argument that "if the interstate commerce clause means this then Congress can do anything" is deeply flawed. Imagine if the Constitution consisted of only the interstate commerce clause and NOTHING else. That certainly would be a very powerful gov't but it doesn't, the rest of the Constitution is there. For example the validity of contracts must be respected, private property cannot be taken without just compensation, due process of law must be respected etc. By itself the ICC gives Congress a huge range of possible policies, even very radical ones like trying to institute pure communism. But the Founders didn't write a Constitution with just the ICC and almost certainly wouldn't have supported one that had just the ICC.
You didn't ask about 'everything', you asked about in-state versus interstate commerce. so you wouldn't say everything falls under Federal jurisdiction, there's still a debate about what is and isn't commerce if nothing else. Let's ask whose really the expansionist here.
Let's say for the sake of argument in 1799 60% of commerce was pure intrastate and 40% interestate. Even back then few people 'lived purely off the land'. Trappers who lived most of the year in pure wilderness did so to sell their furs to the national and international markets. So even then the set of interestate commerce was not trivial.
What % of commerce is interstate today? Well just consider the difficulties and expense you have if you want to follow a 'localvore' eating policy. In 1799 if you had a single plate made in China it was probably a precious heirloom that you kept in a case. Today try finding a plate not made in China. So just say that 99.9% of commerce today is interstate. So what?
This doesn't mean that 'expansionists' have stretched the ICC clause. Economic growth did. Don't get mad at me, get mad at Hamilton for winning the argument with Jefferson. So now you bemoan ICC covering 'almost everything' and insist it can't be so but why not? If you insist that, say, 40% of commerce must be considered 'in state' no matter what reality is then you're expanding in the opposite direction....you're expanding the definition of 'in state' commerce beyond what the Founders would have viewed as instate commerce.
But it is not a tax, no matter what you might like to call it, it is a penalty enforced by the IRS.
Gee, the IRS collects taxes.
And hairs are being split here. If it was a fine then fines are punishment for criminal offenses. You cannot be fined unless you have due process of law. In that case a true 'mandate' would require that people accused of not having insurance be entitled to a trial and representation and be allowed to mount a defense per due process. While taxes can result in court trials, they aren't the same thing. You don't 'plead guilty' to being in a particular tax bracket.
This penalty isn’t being used to raise revenue which is a power gov’t have, instead it is a penalty being used to punish those who don’t buy insurance
Really? Where does the money collected go? To the gov't which offsets the costs of various subsidies for those buying insurance. If more people buy insurance the need to subsidize health care becomes less which reinforces the logic of not taxing those who buy their own insurance.
As for auto insurance, the fed gov doesn’t have the power to make you purchase that either.
Errr actually it does. The highway system is certainly interstate commerce. The Fed. gov't has mostly left this to the states to do but there's no Constitutional principle prohibiting it.
I'd say stuff that isn't commerce would qualify. Hence the court rulings that laws about domestic violence and guns near schools aren't interstate commerce as they are more than twice removed from actual commerce (the laws were justified on grounds that they impact people who presumably would engage in commerce in the future).
In terms of goods and services can you come up with a good or service that isn't traded cross state lines? I think in colonial times milk would qualify. You couldn't keep milk cold and unless you lived on the border line, it probably wouldn't keep very long as it was moved on the slow, unreliable roads they had back then. If you engaged in milk commerce, it was probably limited to less than a mile of your cow. Of course today milk is sold extensively cross state lines.
What, so he’ll lose a little bit on each patient and make it up in volume? :D
Well no if the rate was so low that each patient was a net loss then he would go out of business. He makes money at $40 (or $50 or whatever his total revenue is when you add insurance and co-pays together)...but he makes money at $40 with volumn. If he sees 6 patients an hour he will make money @ $40 per one. If he is only seeing 3 then he must charge $80 to make money (note in both cases he makes $240 an hour).
If he can’t afford $40 per visit then he’ll go out of business. You may have noted stories about how fewer and fewer doctors are accepting Medicaid patients. There is a reason for this.
The question must be asked in context. Is it $40 a visit and multiple visits every hour or $40 a visit and one or two visits per hour? Go to a poor area and you'll probably find docs who accept Medicaid but in a rich area you won't. The rich area doc who takes Medicaid will see one or two more patients which won't help much with the lower rate of reimbursement. The doc running a clinic in a poor area may see his waiting room filled with Medicaid thereby keeping his business afloat.
Sorry, I mean Medicare in that post. Medicaid is also a type of 'single payer' program but it's a bit more complicated since it varies from state to state.
Seems pretty brutish to me. There's no 'door' that needs to be opened for a single payer system. We already have one, it's called Medicaid. If Medicaid is Constitutional for the over 65 crowd, there's no logical way you can conclude that any additional Constitutional hair splitting would be required to simply make it open to the 0+ yrs old crowd.
As for a law being 'economically disruptive' or 'ill-conceived'....if judges are supposed to decide this as well as a law's Constitutionality then what exactly are legislatures for? It seems ironic to say the least that the Judge has discovered that making a law less intrusive, more individual centered and more market centered is somehow overstepping Constitutional boundaries for Federal power yet a law that's would be much more expansive of Federal power (Medicare for all, aka single payer) is somehow cleared by the same logic.
States pulling out of Medicaid is often talked about but highly unlikely to happen. States pay $0.50 on the dollar, or less! Pull out of Medicaid and now you're paying at least double to provide your poor health care. Medicaid's benefits are already pretty poor compared to Medicare and the fees paid to providers tend to be worse. States aren't going to achieve any savings doing it alone that will make up for the loss of Federal help.
Ho, ho, ho. If the doctor can afford to provide medical care at that cost when the insurance is paying, then he can damn well afford it when I’m paying, or else I’ll go to another doctor.
Actually no he probably couldn't. The doctor grumbles but agrees to be a 'preferred provider' of some HMO or insurance company and take $40 per visit as his pay because the insurance company will send him enough patients to keep his day filled with patients. His staff, his rent, his med school loan payments etc. are huge fixed costs to him and he can 'afford' to take $40 for seeing you when he can spread those fixed costs over lots of patients. When he can't, when it's just you Mr. I'll pay OOP no Insurance for Me you get charged $100 because that's what he honestly can afford to charge you. Your statement is on a par with saying because Wal-Mart buys their cans of coffee for $3 from wholesalers there's no reason they can't take $3 from you rather than $6 or $7.
I’m not really seeing how you can read “between the states” as an expansive definition allowing restrictions on entirely in-state commerce.
Or maybe the problem is that our economic lives are now so intgrated, so globalized that it's almost impossible to even imagine any plausible commerce that is purely 'in state' anymore. For example, consider a humble thing like milk. In colonial times milk probably couldn't be transported more than a few miles. YOu had no refridgeration, no rapid transport. There was probably no interstate commerce in milk (yes for cows, yes maybe for dried meats from cows, possibly even eggs which could keep for a while). So maybe then milk was clearly and purely non-interstate commerce. But it is today when they load milk on planes in the US and fly it around the world. Just perhaps the issue isn't that ICC is read too expansively but simply that non-interstate commerce has simply grown much smaller.
In fact, if you think about it honestly for a moment, this almost has to be the case. Have not communications vastly improved? Transportation? Storage, etc.? How could pure in-state commerce not have shrunk and interstate commerce not have expanded?
And then we have the pesky fact that at the time of the Founders we see them doing thinks like imposing a tax on whisky (and not just interstate whisky as far as I can tell) and ruling on whether states can grant local monopolies if such monopolies may step on the toes of interstate commerce....IMO they were aiming for an expansive clause to begin with. If they would be shocked today, would it be because of how much the clause has been expanded or how much interstate commerce has expanded?
As I said, I’m a diabetic. And on a dollars-paid basis, I break even on coverage. If you add up the amount I pay in premiums, and then add up the amount of expenses that are covered by the insurance provider, then they turn out to be within 10% of each other–and the balance goes to the payments side.
Let's assume it's exactly break even. You're still coming out ahead because:
1. The non-zero chance that in a given year the doc may come to you and say "Mr. Duck, we found a dense mass in your brain on that xray...." while that didn't happen last year you were still covered if it had (just as you were probably covered if your house burned down or you had a car accident).
1.1 Unlike a car accident or your house burning down, we as a society aren't quite ready to say go ahead and die if they did find a mass in your brain at the moment you were playing penny wise and pound foolish and were without coverage.
2. Even though it may not have been obvious, you probably did benefit from the counter weight your insurance played with your doc. Instead of having a blank check to try to push any procedure, any drug, any specialist referral on you, the insurance company makes him jump through a few hoops in cases where he's pushing expensive stuff that has unclear benefits. While people often hate this about insurance companies, it does keep costs down and as much as most people like their docs, there is an inherent conflict of interest in the relationship.
I saw this with my wife. She was prescribed a new drug that costs say $130+ a month. The insurance company pushed back and said she had to try the generic first that costs like $20. She did and so far $110 a month is saved. Even if it turns out the generic doesn't work and she goes to the newer drug, the fact that out of 100 people so many will find the cheaper option works thereby freeing up funds that can be used for those who need the more expensive option. Again when its happening you just want to hate the insurance company, you'd rather they shut up and pay for you. But as annoying as it is, we are better off for it.
I think, by your own admission, that it is a step removed from interstate commerce.
Actually it would be directly commerce. Even in Gibbon the argument (that failed) for limitation was that commerce was limited to physical goods, not transportation or traffic. Note again the decision said nothing about the Constitutionality of gov't created monopolies as a ICC scheme. If the Feds could establish a monopoly on crossing the Hudson river (which would presumably include people who had their own raft, boat or who even just wanted to swim it) then why couldn't they do the same with wheat?
Doesn’t this invite the counter-”argument” that “your only asserting it is because you want an expansive ICC that covers things one step removed from interstate commerce”? If not, why not?
Consistency, if they overturn the law by ushering in a radical new reading of the ICC then that's one thing, if they overturn it with a selective reading of the ICC that leaves in place all or most other decisions that's quite a different thing.
On my side, though, you have the fact that the Founders were trying to increase the power of the Federal gov't and were fully aware that gov'ts both in their present time and in recent history had quite extensive regulation of commerce.....in other words veered quite far from what you would think as an Adam Smith type orthodoxy. If they wanted a highly limited ICC they probably would have written one instead of leaving it to guess.
How about the Tenth Amendment? That seems a pretty clear justification for the argument that Congress can’t use the ICC to regulate an activity which is neither commerce nor interstate.
Wheat isn't commerce? And your only asserting its not interstate because you want to limit ICC to just being direct commerce. The actual text itself, though, is silent on whether ICC is expansive or restrictive. Given that schemes to regulate commerce were hardly uncommon in the Founders' day, and that the Constitution was written to expand rather than contract Federal power, you're left with the question if the Founders wanted a limited ICC, then why did they write a vague one? You can't claim that they just couldn't imagine expansive commerce regulation when they themselves sat in a world where royal monopolies were old history and the states themselves were implementing various schemes.
The irony is that you have only the perception that that's a single political party in the system today that's representing your stance. Perception only.. ... The reality is that the Republicans have created unfunded 'single payer' entitlements when they ran things less than ten years ago while Democrats created funded market based entitlements.
Of course a health system is 'built on the backs' of the healthy. Who else can it really be built on? This applies to a system where everyone buys private insurance or a single payer system.
The 25 vs 50 yr old thing, though, is not so simple. The 25 yr old may go do the doctor once a year but then again he may notice an odd lump in his chest tomorrow.
The analogies that many draw to, say, fire insurance do not really reflect the whole reality of health insurance. Part of it is like fire insurance (offsetting the risk that you'll be the 1 in 1000 who gets a rare disease), part of it is also risk management (getting a health plan in place now to lower your risk of heart attacks, diabetes, cancer etc. years and decades from now), part of it is also prepaying for future expected expenses (since you have coverage now the diabetes you get 5 years from now won't be a 'pre-existing condition), and part of it is expert negotiators with the health care industry (those 'gatekeepers' which everyone loves to hate do, in fact, serve a purpose in keeping docs and health care providers from going hog wild with lots of unneeded tests, procedures, etc. )
I'd be curious to see the law tested without the mandate. The 'death spiral' hypothesis is that people with pre-existing conditions would game the system while the healthy would remain uncovered. I've recalled reading, though, that young and healthy people tend to under-estimate the odds of not needing health care. For example when offered coverage by their employers they tend to take it even if the price is technically 'too high' for your hyper-rational economic man.
I'd suspect if you let the mandate go but left everything else the impact would not be as bad as expected. Insurance companies could be compensated in other ways such as a direct subsidy or tax write off/credit for taking on people who are sicker than average.
The 'gov't teat' is that you have to buy your own health insurance with your own money with maybe a subsidy if you don't have a lot of income with gov'ts main action being that when you go to buy the insurance you're not priced out of the market by medical profiling or pre-existing conditions.
The opposite of this is "keep the gov't out of Medicare"?
If you required a militia member to provide a certain type of rifle AND that rifle was under patent protection (power explicitly given in the Constitution) you'd be requiring them to purchase something.
How they did so was their business, not to mention the fact that most men would have already owned those items as they were necessary for daily existence.
Necessary for daily existence? How? Even in colonial times most people did not hunt every day for their food and living in, say, Boston or NY did not require daily gun fights with anyone.
I think Scalia will have a tough time not voting to uphold the law. In Gonzales (the case where the court held the Feds could ban medical pot even if states restricted it to only locally grown and used), he wrote:
Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce. ... This is not a power that threatens to obliterate the line between “what is truly national and what is truly local (from our friend wikipedia....)
This makes for a rather odd stance to say that you can't have a non-tax individual mandate.
1. The gov't can clearly tax everyone, say, $5000 and give them health insurance....see Medicare.
2. The gov't could probably tax everyone $5000 and give them a voucher that they can use to buy insurance or if they don't buy insurance have that voucher buy some 'default policy' automatically.
3. The gov't can't, though, just say go out and buy insurance or pay $5000? That's tyranny but if the gov't takes $5000 from you first then gives it back for you to buy insurance it's not?????
IMO Scalia will have a hard time voting against the law without it looking very much like "I'm voting to strike down this law because I wanted McCain to win so screw you guys I'm taking my toys and going home". Thomas is on better ground here as he explictly asserted a highly limited reading of the Commerce clause and likewise dissented in Gonzales.
My assertion that this is judicial activism, though, comes from being selective. If you want the Thomas reading then you should take it whole. That includes not only the health bill but almost all drug laws, probably even the FDA and a lot else. But if the law is really struck down it almost certainly won't be due to a radical new re-reading of the commerce clause, it will be a highly selective reading that will be deployed only for the benefit of the health bill but remain the same old same old for everything else.
Explicit may be a hair strong... but if it were not there at all, why in the hell would we have needed an 18th Amendment?
Why the hell indeed? Unlike the income tax, which was passed and then struck down before an amendment was passed to achieve it, prohibition relies on the interstate commerce clause and there was never any Congressional law attempted that was struck down.
The answer is, IMO, at the time people were assuming a strict reading of the commerce clause was the correct one. The clause itself doesn't say, though. The Whisky Rebellion, for example, started at the beginning of the new Constitution and was motivated by an excise tax on Whisky which I don't believe was limited only to whiksy crossing state lines. If the reach of interstate commerce allowed the Federal gov't to touch goods that weren't actually crossing state lines it doesn't seem necessary use an amendment to ban a product. Likewise today pot and other drugs remain banned even when they aren't crossing state lines and no other amendment was ever passed that banned them.
Given these facts then where is your actual argument that a person growing wheat for their own use shouldn't be touched by a Federal law? Is it really based on anything of substance or just a feeling that since such a law seems bad there must be some Constitutional argument against it or some feeling that the Constitution somehow enshrined some set of 'economic liberties' which is some shorthand for the economics of people like Smith, Rand, Hayek, Friedman & co.? It didn't. In Gibbons the SC wasn't shocked that a state would try to grant a monopoly to a private businessman, it just objected to the state stepping on the toes of Congress while doing it. The Founders were well aware of gov'ts doing things like granting monopolies and such even though such policies were not 'orthodox' per Adam Smith. If they thought that such policies were in themselves tyranny they could have easily banned them, they didn't because they didn't.
Lawmaker intent IMO is important but its important when deciding what language means. If you have language that's ambigious you can use lawmaker statements and even statements by the general public in the debate to help determine what was meant. But:
1. 'Intent' doesn't void actual language. In my hypothetical a clearly cruel punishment (cutting off people's hands) doesn't turn into a tax by a collective chant that it's a tax. Likewise a collective chant that something isn't a tax doesn't alter its legal status. This is why I ask again if it's not a tax what specific changes would have to be made to make it a tax?
2. Form and function continue to matter here. In terms of policy you can say the mandate is functionally a penalty, a fee, a fine, a tax etc. In terms of law there is no criminality assigned to the mandate. This matters in terms of form. A lawyer, for example, cannot advise you to break the law, even if the penalty for doing so is only a minor fine that you may be tempted to treat as simply a 'fee', 'price' or 'tax'.
This matters because in alternative universes you can imagine a mandate with criminal teeth. You can imagine criminal penalties like the penalties parents can be charged with who refuse to provide for their kids' education. I can easily imagine in that alternative universe the Jaybird's and GOPers asserting that 'if only' the law had a 'simple tax' or 'fee' instead of putting people in jail for not buying insurance it would be perfectly Constitutional.
*Comment archive for non-registered commenters assembled by email address as provided.
On “Florida Judge Voids Affordable Care Act”
Already answered.
On “Legislating from the bench”
So then the amount of money states have been spending on state college must be going down over the past decade or two? Right?
After all if increased Medicaid spending is crowding it out then it must be going down. In a contest of where to cut spending, the problem with pulling out of Medicaid remains 50%. Cutting $100 in spending only saves the state $50 while cutting, say, pension benefits for state workers $100 saves, well, $100.
On “Florida Judge Voids Affordable Care Act”
Sure, I can have a hearing, but I can’t request a jury of my peers and the burden of evidence is far different.
States are not required to provide you with a jury for minor criminal offenses. The Bill of Rights in the US Constitution mostly applies to the Fed. gov't, not the states. After the Civil War amendments most, not all, of the Bill of Rights were incorported to apply to the states.
Scott
Just b/c the IRS collects the penalty doesn’t make it a tax. I love your logic though, the IRS collects it so it must be a tax. Who can argue with that kind of logic?
Actually that wasn't my argument. But the fact that the IRS is collecting it AND the law specifically declines to allow the gov't to use any of its powers of criminal prosecution to go after those who don't pay does lean towards viewing it as a tax.
A more potent way to think about it IMO is does the law allow you to opt to go without insurance if you're willing to pay the tax?
Let me put the question in context of a simple hypothetical. A town has a law saying parking in certain areas is illegal and the fine is $50. The town also operates a parking garage which charges $100 on a particular weekend when there's a big event happening.
Now an economist doesn't care about the law, only prices. He may advise his client to park in the illegal space and just pay the $50 fine. A lawyer, though, does care about the law. He cannot advise his client to park illegally. Even though the penalty is trivial, I don't believe a lawyer can ethically advise a client to "do the crime, then do the time" even if the 'time' is pretty trivial.
It seems to me if this is really a mandate rather than a tax, a lawyer would find it ethically troubling to advise a client who simply didn't want to buy health insurance but was willing to pay the penalty to do so.
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And also the argument that "if the interstate commerce clause means this then Congress can do anything" is deeply flawed. Imagine if the Constitution consisted of only the interstate commerce clause and NOTHING else. That certainly would be a very powerful gov't but it doesn't, the rest of the Constitution is there. For example the validity of contracts must be respected, private property cannot be taken without just compensation, due process of law must be respected etc. By itself the ICC gives Congress a huge range of possible policies, even very radical ones like trying to institute pure communism. But the Founders didn't write a Constitution with just the ICC and almost certainly wouldn't have supported one that had just the ICC.
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You didn't ask about 'everything', you asked about in-state versus interstate commerce. so you wouldn't say everything falls under Federal jurisdiction, there's still a debate about what is and isn't commerce if nothing else. Let's ask whose really the expansionist here.
Let's say for the sake of argument in 1799 60% of commerce was pure intrastate and 40% interestate. Even back then few people 'lived purely off the land'. Trappers who lived most of the year in pure wilderness did so to sell their furs to the national and international markets. So even then the set of interestate commerce was not trivial.
What % of commerce is interstate today? Well just consider the difficulties and expense you have if you want to follow a 'localvore' eating policy. In 1799 if you had a single plate made in China it was probably a precious heirloom that you kept in a case. Today try finding a plate not made in China. So just say that 99.9% of commerce today is interstate. So what?
This doesn't mean that 'expansionists' have stretched the ICC clause. Economic growth did. Don't get mad at me, get mad at Hamilton for winning the argument with Jefferson. So now you bemoan ICC covering 'almost everything' and insist it can't be so but why not? If you insist that, say, 40% of commerce must be considered 'in state' no matter what reality is then you're expanding in the opposite direction....you're expanding the definition of 'in state' commerce beyond what the Founders would have viewed as instate commerce.
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But it is not a tax, no matter what you might like to call it, it is a penalty enforced by the IRS.
Gee, the IRS collects taxes.
And hairs are being split here. If it was a fine then fines are punishment for criminal offenses. You cannot be fined unless you have due process of law. In that case a true 'mandate' would require that people accused of not having insurance be entitled to a trial and representation and be allowed to mount a defense per due process. While taxes can result in court trials, they aren't the same thing. You don't 'plead guilty' to being in a particular tax bracket.
This penalty isn’t being used to raise revenue which is a power gov’t have, instead it is a penalty being used to punish those who don’t buy insurance
Really? Where does the money collected go? To the gov't which offsets the costs of various subsidies for those buying insurance. If more people buy insurance the need to subsidize health care becomes less which reinforces the logic of not taxing those who buy their own insurance.
As for auto insurance, the fed gov doesn’t have the power to make you purchase that either.
Errr actually it does. The highway system is certainly interstate commerce. The Fed. gov't has mostly left this to the states to do but there's no Constitutional principle prohibiting it.
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I'd say stuff that isn't commerce would qualify. Hence the court rulings that laws about domestic violence and guns near schools aren't interstate commerce as they are more than twice removed from actual commerce (the laws were justified on grounds that they impact people who presumably would engage in commerce in the future).
In terms of goods and services can you come up with a good or service that isn't traded cross state lines? I think in colonial times milk would qualify. You couldn't keep milk cold and unless you lived on the border line, it probably wouldn't keep very long as it was moved on the slow, unreliable roads they had back then. If you engaged in milk commerce, it was probably limited to less than a mile of your cow. Of course today milk is sold extensively cross state lines.
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What, so he’ll lose a little bit on each patient and make it up in volume? :D
Well no if the rate was so low that each patient was a net loss then he would go out of business. He makes money at $40 (or $50 or whatever his total revenue is when you add insurance and co-pays together)...but he makes money at $40 with volumn. If he sees 6 patients an hour he will make money @ $40 per one. If he is only seeing 3 then he must charge $80 to make money (note in both cases he makes $240 an hour).
If he can’t afford $40 per visit then he’ll go out of business. You may have noted stories about how fewer and fewer doctors are accepting Medicaid patients. There is a reason for this.
The question must be asked in context. Is it $40 a visit and multiple visits every hour or $40 a visit and one or two visits per hour? Go to a poor area and you'll probably find docs who accept Medicaid but in a rich area you won't. The rich area doc who takes Medicaid will see one or two more patients which won't help much with the lower rate of reimbursement. The doc running a clinic in a poor area may see his waiting room filled with Medicaid thereby keeping his business afloat.
On “Legislating from the bench”
Sorry, I mean Medicare in that post. Medicaid is also a type of 'single payer' program but it's a bit more complicated since it varies from state to state.
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Seems pretty brutish to me. There's no 'door' that needs to be opened for a single payer system. We already have one, it's called Medicaid. If Medicaid is Constitutional for the over 65 crowd, there's no logical way you can conclude that any additional Constitutional hair splitting would be required to simply make it open to the 0+ yrs old crowd.
As for a law being 'economically disruptive' or 'ill-conceived'....if judges are supposed to decide this as well as a law's Constitutionality then what exactly are legislatures for? It seems ironic to say the least that the Judge has discovered that making a law less intrusive, more individual centered and more market centered is somehow overstepping Constitutional boundaries for Federal power yet a law that's would be much more expansive of Federal power (Medicare for all, aka single payer) is somehow cleared by the same logic.
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States pulling out of Medicaid is often talked about but highly unlikely to happen. States pay $0.50 on the dollar, or less! Pull out of Medicaid and now you're paying at least double to provide your poor health care. Medicaid's benefits are already pretty poor compared to Medicare and the fees paid to providers tend to be worse. States aren't going to achieve any savings doing it alone that will make up for the loss of Federal help.
On “Florida Judge Voids Affordable Care Act”
Ho, ho, ho. If the doctor can afford to provide medical care at that cost when the insurance is paying, then he can damn well afford it when I’m paying, or else I’ll go to another doctor.
Actually no he probably couldn't. The doctor grumbles but agrees to be a 'preferred provider' of some HMO or insurance company and take $40 per visit as his pay because the insurance company will send him enough patients to keep his day filled with patients. His staff, his rent, his med school loan payments etc. are huge fixed costs to him and he can 'afford' to take $40 for seeing you when he can spread those fixed costs over lots of patients. When he can't, when it's just you Mr. I'll pay OOP no Insurance for Me you get charged $100 because that's what he honestly can afford to charge you. Your statement is on a par with saying because Wal-Mart buys their cans of coffee for $3 from wholesalers there's no reason they can't take $3 from you rather than $6 or $7.
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I’m not really seeing how you can read “between the states” as an expansive definition allowing restrictions on entirely in-state commerce.
Or maybe the problem is that our economic lives are now so intgrated, so globalized that it's almost impossible to even imagine any plausible commerce that is purely 'in state' anymore. For example, consider a humble thing like milk. In colonial times milk probably couldn't be transported more than a few miles. YOu had no refridgeration, no rapid transport. There was probably no interstate commerce in milk (yes for cows, yes maybe for dried meats from cows, possibly even eggs which could keep for a while). So maybe then milk was clearly and purely non-interstate commerce. But it is today when they load milk on planes in the US and fly it around the world. Just perhaps the issue isn't that ICC is read too expansively but simply that non-interstate commerce has simply grown much smaller.
In fact, if you think about it honestly for a moment, this almost has to be the case. Have not communications vastly improved? Transportation? Storage, etc.? How could pure in-state commerce not have shrunk and interstate commerce not have expanded?
And then we have the pesky fact that at the time of the Founders we see them doing thinks like imposing a tax on whisky (and not just interstate whisky as far as I can tell) and ruling on whether states can grant local monopolies if such monopolies may step on the toes of interstate commerce....IMO they were aiming for an expansive clause to begin with. If they would be shocked today, would it be because of how much the clause has been expanded or how much interstate commerce has expanded?
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As I said, I’m a diabetic. And on a dollars-paid basis, I break even on coverage. If you add up the amount I pay in premiums, and then add up the amount of expenses that are covered by the insurance provider, then they turn out to be within 10% of each other–and the balance goes to the payments side.
Let's assume it's exactly break even. You're still coming out ahead because:
1. The non-zero chance that in a given year the doc may come to you and say "Mr. Duck, we found a dense mass in your brain on that xray...." while that didn't happen last year you were still covered if it had (just as you were probably covered if your house burned down or you had a car accident).
1.1 Unlike a car accident or your house burning down, we as a society aren't quite ready to say go ahead and die if they did find a mass in your brain at the moment you were playing penny wise and pound foolish and were without coverage.
2. Even though it may not have been obvious, you probably did benefit from the counter weight your insurance played with your doc. Instead of having a blank check to try to push any procedure, any drug, any specialist referral on you, the insurance company makes him jump through a few hoops in cases where he's pushing expensive stuff that has unclear benefits. While people often hate this about insurance companies, it does keep costs down and as much as most people like their docs, there is an inherent conflict of interest in the relationship.
I saw this with my wife. She was prescribed a new drug that costs say $130+ a month. The insurance company pushed back and said she had to try the generic first that costs like $20. She did and so far $110 a month is saved. Even if it turns out the generic doesn't work and she goes to the newer drug, the fact that out of 100 people so many will find the cheaper option works thereby freeing up funds that can be used for those who need the more expensive option. Again when its happening you just want to hate the insurance company, you'd rather they shut up and pay for you. But as annoying as it is, we are better off for it.
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I think, by your own admission, that it is a step removed from interstate commerce.
Actually it would be directly commerce. Even in Gibbon the argument (that failed) for limitation was that commerce was limited to physical goods, not transportation or traffic. Note again the decision said nothing about the Constitutionality of gov't created monopolies as a ICC scheme. If the Feds could establish a monopoly on crossing the Hudson river (which would presumably include people who had their own raft, boat or who even just wanted to swim it) then why couldn't they do the same with wheat?
Doesn’t this invite the counter-”argument” that “your only asserting it is because you want an expansive ICC that covers things one step removed from interstate commerce”? If not, why not?
Consistency, if they overturn the law by ushering in a radical new reading of the ICC then that's one thing, if they overturn it with a selective reading of the ICC that leaves in place all or most other decisions that's quite a different thing.
On my side, though, you have the fact that the Founders were trying to increase the power of the Federal gov't and were fully aware that gov'ts both in their present time and in recent history had quite extensive regulation of commerce.....in other words veered quite far from what you would think as an Adam Smith type orthodoxy. If they wanted a highly limited ICC they probably would have written one instead of leaving it to guess.
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How about the Tenth Amendment? That seems a pretty clear justification for the argument that Congress can’t use the ICC to regulate an activity which is neither commerce nor interstate.
Wheat isn't commerce? And your only asserting its not interstate because you want to limit ICC to just being direct commerce. The actual text itself, though, is silent on whether ICC is expansive or restrictive. Given that schemes to regulate commerce were hardly uncommon in the Founders' day, and that the Constitution was written to expand rather than contract Federal power, you're left with the question if the Founders wanted a limited ICC, then why did they write a vague one? You can't claim that they just couldn't imagine expansive commerce regulation when they themselves sat in a world where royal monopolies were old history and the states themselves were implementing various schemes.
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The operative phrase here is “individual mandate”. This has absolutely nothing to do with the Commerce Clause.
The phrase doesn't appear in the bill.
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The irony is that you have only the perception that that's a single political party in the system today that's representing your stance. Perception only.. ... The reality is that the Republicans have created unfunded 'single payer' entitlements when they ran things less than ten years ago while Democrats created funded market based entitlements.
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Of course a health system is 'built on the backs' of the healthy. Who else can it really be built on? This applies to a system where everyone buys private insurance or a single payer system.
The 25 vs 50 yr old thing, though, is not so simple. The 25 yr old may go do the doctor once a year but then again he may notice an odd lump in his chest tomorrow.
The analogies that many draw to, say, fire insurance do not really reflect the whole reality of health insurance. Part of it is like fire insurance (offsetting the risk that you'll be the 1 in 1000 who gets a rare disease), part of it is also risk management (getting a health plan in place now to lower your risk of heart attacks, diabetes, cancer etc. years and decades from now), part of it is also prepaying for future expected expenses (since you have coverage now the diabetes you get 5 years from now won't be a 'pre-existing condition), and part of it is expert negotiators with the health care industry (those 'gatekeepers' which everyone loves to hate do, in fact, serve a purpose in keeping docs and health care providers from going hog wild with lots of unneeded tests, procedures, etc. )
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I'd be curious to see the law tested without the mandate. The 'death spiral' hypothesis is that people with pre-existing conditions would game the system while the healthy would remain uncovered. I've recalled reading, though, that young and healthy people tend to under-estimate the odds of not needing health care. For example when offered coverage by their employers they tend to take it even if the price is technically 'too high' for your hyper-rational economic man.
I'd suspect if you let the mandate go but left everything else the impact would not be as bad as expected. Insurance companies could be compensated in other ways such as a direct subsidy or tax write off/credit for taking on people who are sicker than average.
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The 'gov't teat' is that you have to buy your own health insurance with your own money with maybe a subsidy if you don't have a lot of income with gov'ts main action being that when you go to buy the insurance you're not priced out of the market by medical profiling or pre-existing conditions.
The opposite of this is "keep the gov't out of Medicare"?
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If you required a militia member to provide a certain type of rifle AND that rifle was under patent protection (power explicitly given in the Constitution) you'd be requiring them to purchase something.
How they did so was their business, not to mention the fact that most men would have already owned those items as they were necessary for daily existence.
Necessary for daily existence? How? Even in colonial times most people did not hunt every day for their food and living in, say, Boston or NY did not require daily gun fights with anyone.
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I think Scalia will have a tough time not voting to uphold the law. In Gonzales (the case where the court held the Feds could ban medical pot even if states restricted it to only locally grown and used), he wrote:
Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce. ... This is not a power that threatens to obliterate the line between “what is truly national and what is truly local (from our friend wikipedia....)
This makes for a rather odd stance to say that you can't have a non-tax individual mandate.
1. The gov't can clearly tax everyone, say, $5000 and give them health insurance....see Medicare.
2. The gov't could probably tax everyone $5000 and give them a voucher that they can use to buy insurance or if they don't buy insurance have that voucher buy some 'default policy' automatically.
3. The gov't can't, though, just say go out and buy insurance or pay $5000? That's tyranny but if the gov't takes $5000 from you first then gives it back for you to buy insurance it's not?????
IMO Scalia will have a hard time voting against the law without it looking very much like "I'm voting to strike down this law because I wanted McCain to win so screw you guys I'm taking my toys and going home". Thomas is on better ground here as he explictly asserted a highly limited reading of the Commerce clause and likewise dissented in Gonzales.
My assertion that this is judicial activism, though, comes from being selective. If you want the Thomas reading then you should take it whole. That includes not only the health bill but almost all drug laws, probably even the FDA and a lot else. But if the law is really struck down it almost certainly won't be due to a radical new re-reading of the commerce clause, it will be a highly selective reading that will be deployed only for the benefit of the health bill but remain the same old same old for everything else.
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Explicit may be a hair strong... but if it were not there at all, why in the hell would we have needed an 18th Amendment?
Why the hell indeed? Unlike the income tax, which was passed and then struck down before an amendment was passed to achieve it, prohibition relies on the interstate commerce clause and there was never any Congressional law attempted that was struck down.
The answer is, IMO, at the time people were assuming a strict reading of the commerce clause was the correct one. The clause itself doesn't say, though. The Whisky Rebellion, for example, started at the beginning of the new Constitution and was motivated by an excise tax on Whisky which I don't believe was limited only to whiksy crossing state lines. If the reach of interstate commerce allowed the Federal gov't to touch goods that weren't actually crossing state lines it doesn't seem necessary use an amendment to ban a product. Likewise today pot and other drugs remain banned even when they aren't crossing state lines and no other amendment was ever passed that banned them.
Given these facts then where is your actual argument that a person growing wheat for their own use shouldn't be touched by a Federal law? Is it really based on anything of substance or just a feeling that since such a law seems bad there must be some Constitutional argument against it or some feeling that the Constitution somehow enshrined some set of 'economic liberties' which is some shorthand for the economics of people like Smith, Rand, Hayek, Friedman & co.? It didn't. In Gibbons the SC wasn't shocked that a state would try to grant a monopoly to a private businessman, it just objected to the state stepping on the toes of Congress while doing it. The Founders were well aware of gov'ts doing things like granting monopolies and such even though such policies were not 'orthodox' per Adam Smith. If they thought that such policies were in themselves tyranny they could have easily banned them, they didn't because they didn't.
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Lawmaker intent IMO is important but its important when deciding what language means. If you have language that's ambigious you can use lawmaker statements and even statements by the general public in the debate to help determine what was meant. But:
1. 'Intent' doesn't void actual language. In my hypothetical a clearly cruel punishment (cutting off people's hands) doesn't turn into a tax by a collective chant that it's a tax. Likewise a collective chant that something isn't a tax doesn't alter its legal status. This is why I ask again if it's not a tax what specific changes would have to be made to make it a tax?
2. Form and function continue to matter here. In terms of policy you can say the mandate is functionally a penalty, a fee, a fine, a tax etc. In terms of law there is no criminality assigned to the mandate. This matters in terms of form. A lawyer, for example, cannot advise you to break the law, even if the penalty for doing so is only a minor fine that you may be tempted to treat as simply a 'fee', 'price' or 'tax'.
This matters because in alternative universes you can imagine a mandate with criminal teeth. You can imagine criminal penalties like the penalties parents can be charged with who refuse to provide for their kids' education. I can easily imagine in that alternative universe the Jaybird's and GOPers asserting that 'if only' the law had a 'simple tax' or 'fee' instead of putting people in jail for not buying insurance it would be perfectly Constitutional.
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