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Posted by Scottaculous on Sep-18-2009 21:18:

quote:
Originally posted by The17sss
I am a conservative.
This morning I was awoken by my alarm clock powered by electricity generated by the public power monopoly regulated by the U.S. Department of Energy.

I then took a shower in the clean water provided by a municipal water utility.

After that, I turned on the TV to one of the FCC-regulated channels to see what the National Weather Service of the National Oceanographic and Atmospheric Administration determined the weather was going to be like, using satellites designed, built, and launched by the National Aeronautics and Space Administration.

I watched this while eating my breakfast of U.S. Department of Agriculture-inspected food and taking the drugs which have been determined as safe by the U.S. Food and Drug Administration.

At the appropriate time, as regulated by the U.S. Congress and kept accurate by the National Institute of Standards and Technology and the U.S. Naval Observatory, I get into my National Highway Traffic Safety Administration-approved automobile and set out to work on the roads build by the local, state, and federal Departments of Transportation, possibly stopping to purchase additional fuel of a quality level
determined by the Environmental Protection Agency, using legal tender issued by the Federal Reserve Bank.

On the way out the door I deposit any mail I have to be sent out via the U.S. Postal Service and drop the kids off at the public school.

After spending another day not being maimed or killed at work thanks to the workplace regulations imposed by the Department of Labor and the Occupational Safety and Health administration, enjoying another two meals which again do not kill me because of the USDA, I drive my NHTSA car back home on the DOT roads, to my house which has not burned down in my absence because of the state and local building codes and Fire Marshal's inspection, and which has not been plundered of all its
valuables thanks to the local police department.

And then I log on to the internet -- which was developed by the Defense Advanced Research Projects Administration -- and post on Freerepublic.com and Fox News forums about how SOCIALISM in medicine is BAD because the government can't do anything right.


Posted by Brahman on Sep-19-2009 00:14:

quote:
Originally posted by Scottaculous



Posted by Shakka on Sep-20-2009 14:17:

Caught the 2nd part of this debate the WSJ over the weekend. Presents a different angle from what (I think) we've been debating for the last several months (years) now. One has to imagine that at some point SCOTUS will be very much involved in this debate, but I'd imagine not until some sort of legislation is passed that must then be judged. Until then I'd expect them to remain mum on the issue.

I think this applies more to the universal mandate, but the crux of the argument is that it is unconstitutional. Makes for some interesting reading. I agree more with the 2nd article than the first.

2 articles:

http://online.wsj.com/article/SB100...3406386548.html
quote:
Health-Care Reform and the Constitution
Why hasn't the Commerce Clause been read to allow interstate insurance sales?

By ANDREW P. NAPOLITANO

Last week, I asked South Carolina Congressman James Clyburn, the third-ranking Democrat in the House of Representatives, where in the Constitution it authorizes the federal government to regulate the delivery of health care. He replied: "There's nothing in the Constitution that says that the federal government has anything to do with most of the stuff we do." Then he shot back: "How about [you] show me where in the Constitution it prohibits the federal government from doing this?"

Rep. Clyburn, like many of his colleagues, seems to have conveniently forgotten that the federal government has only specific enumerated powers. He also seems to have overlooked the Ninth and 10th Amendments, which limit Congress's powers only to those granted in the Constitution.

One of those powers�the power "to regulate" interstate commerce�is the favorite hook on which Congress hangs its hat in order to justify the regulation of anything it wants to control.

Unfortunately, a notoriously tendentious New Deal-era Supreme Court decision has given Congress a green light to use the Commerce Clause to regulate noncommercial, and even purely local, private behavior. In Wickard v. Filburn (1942), the Supreme Court held that a farmer who grew wheat just for the consumption of his own family violated federal agricultural guidelines enacted pursuant to the Commerce Clause. Though the wheat did not move across state lines�indeed, it never left his farm�the Court held that if other similarly situated farmers were permitted to do the same it, might have an aggregate effect on interstate commerce.

James Madison, who argued that to regulate meant to keep regular, would have shuddered at such circular reasoning. Madison's understanding was the commonly held one in 1789, since the principle reason for the Constitutional Convention was to establish a central government that would prevent ruinous state-imposed tariffs that favored in-state businesses. It would do so by assuring that commerce between the states was kept "regular."

The Supreme Court finally came to its senses when it invalidated a congressional ban on illegal guns within 1,000 feet of public schools. In United States v. Lopez (1995), the Court ruled that the Commerce Clause may only be used by Congress to regulate human activity that is truly commercial at its core and that has not traditionally been regulated by the states. The movement of illegal guns from one state to another, the Court ruled, was criminal and not commercial at its core, and school safety has historically been a state function.

Applying these principles to President Barack Obama's health-care proposal, it's clear that his plan is unconstitutional at its core. The practice of medicine consists of the delivery of intimate services to the human body. In almost all instances, the delivery of medical services occurs in one place and does not move across interstate lines. One goes to a physician not to engage in commercial activity, as the Framers of the Constitution understood, but to improve one's health. And the practice of medicine, much like public school safety, has been regulated by states for the past century.

The same Congress that wants to tell family farmers what to grow in their backyards has declined "to keep regular" the commercial sale of insurance policies. It has permitted all 50 states to erect the type of barriers that the Commerce Clause was written precisely to tear down. Insurers are barred from selling policies to people in another state.

That's right: Congress refuses to keep commerce regular when the commercial activity is the sale of insurance, but claims it can regulate the removal of a person's appendix because that constitutes interstate commerce.

What we have here is raw abuse of power by the federal government for political purposes. The president and his colleagues want to reward their supporters with "free" health care that the rest of us will end up paying for. Their only restraint on their exercise of Commerce Clause power is whatever they can get away with. They aren't upholding the Constitution�they are evading it.

Mr. Napolitano, who served on the bench of the Superior Court of New Jersey between 1987 and 1995, is the senior judicial analyst at the Fox News Channel. His latest book is "Dred Scott's Revenge: A Legal History of Race and Freedom in America" (Nelson, 2009).


http://online.wsj.com/article/SB100....html#printMode
quote:

Mandatory Insurance Is Unconstitutional
Why an individual mandate could be struck down by the courts.

By DAVID B. RIVKIN JR. AND LEE A. CASEY

Federal legislation requiring that every American have health insurance is part of all the major health-care reform plans now being considered in Washington. Such a mandate, however, would expand the federal government�s authority over individual Americans to an unprecedented degree. It is also profoundly unconstitutional.

An individual mandate has been a hardy perennial of health-care reform proposals since HillaryCare in the early 1990s. President Barack Obama defended its merits before Congress last week, claiming that uninsured people still use medical services and impose the costs on everyone else. But the reality is far different. Certainly some uninsured use emergency rooms in lieu of primary care physicians, but the majority are young people who forgo insurance precisely because they do not expect to need much medical care. When they do, these uninsured pay full freight, often at premium rates, thereby actually subsidizing insured Americans.

The mandate's real justifications are far more cynical and political. Making healthy young adults pay billions of dollars in premiums into the national health-care market is the only way to fund universal coverage without raising substantial new taxes. In effect, this mandate would be one more giant, cross-generational subsidy�imposed on generations who are already stuck with the bill for the federal government's prior spending sprees.

Politically, of course, the mandate is essential to winning insurance industry support for the legislation and acceptance of heavy federal regulations. Millions of new customers will be driven into insurance-company arms. Moreover, without the mandate, the entire thrust of the new regulatory scheme�requiring insurance companies to cover pre-existing conditions and to accept standardized premiums�would produce dysfunctional consequences. It would make little sense for anyone, young or old, to buy insurance before he actually got sick. Such a socialization of costs also happens to be an essential step toward the single payer, national health system, still stridently supported by large parts of the president's base.

The elephant in the room is the Constitution. As every civics class once taught, the federal government is a government of limited, enumerated powers, with the states retaining broad regulatory authority. As James Madison explained in the Federalist Papers: "In the first place it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects." Congress, in other words, cannot regulate simply because it sees a problem to be fixed. Federal law must be grounded in one of the specific grants of authority found in the Constitution.

These are mostly found in Article I, Section 8, which among other things gives Congress the power to tax, borrow and spend money, raise and support armies, declare war, establish post offices and regulate commerce. It is the authority to regulate foreign and interstate commerce that�in one way or another�supports most of the elaborate federal regulatory system. If the federal government has any right to reform, revise or remake the American health-care system, it must be found in this all-important provision. This is especially true of any mandate that every American obtain health-care insurance or face a penalty.

The Supreme Court construes the commerce power broadly. In the most recent Commerce Clause case, Gonzales v. Raich (2005) , the court ruled that Congress can even regulate the cultivation of marijuana for personal use so long as there is a rational basis to believe that such "activities, taken in the aggregate, substantially affect interstate commerce."

But there are important limits. In United States v. Lopez (1995), for example, the Court invalidated the Gun Free School Zones Act because that law made it a crime simply to possess a gun near a school. It did not "regulate any economic activity and did not contain any requirement that the possession of a gun have any connection to past interstate activity or a predictable impact on future commercial activity." Of course, a health-care mandate would not regulate any "activity," such as employment or growing pot in the bathroom, at all. Simply being an American would trigger it.

Health-care backers understand this and�like Lewis Carroll's Red Queen insisting that some hills are valleys�have framed the mandate as a "tax" rather than a regulation. Under Sen. Max Baucus's (D., Mont.) most recent plan, people who do not maintain health insurance for themselves and their families would be forced to pay an "excise tax" of up to $1,500 per year�roughly comparable to the cost of insurance coverage under the new plan.

But Congress cannot so simply avoid the constitutional limits on its power. Taxation can favor one industry or course of action over another, but a "tax" that falls exclusively on anyone who is uninsured is a penalty beyond Congress's authority. If the rule were otherwise, Congress could evade all constitutional limits by "taxing" anyone who doesn't follow an order of any kind�whether to obtain health-care insurance, or to join a health club, or exercise regularly, or even eat your vegetables.

This type of congressional trickery is bad for our democracy and has implications far beyond the health-care debate. The Constitution's Framers divided power between the federal government and states�just as they did among the three federal branches of government�for a reason. They viewed these structural limitations on governmental power as the most reliable means of protecting individual liberty�more important even than the Bill of Rights.

Yet if that imperative is insufficient to prompt reconsideration of the mandate (and the approach to reform it supports), then the inevitable judicial challenges should. Since the 1930s, the Supreme Court has been reluctant to invalidate "regulatory" taxes. However, a tax that is so clearly a penalty for failing to comply with requirements otherwise beyond Congress's constitutional power will present the question whether there are any limits on Congress's power to regulate individual Americans. The Supreme Court has never accepted such a proposition, and it is unlikely to accept it now, even in an area as important as health care.

Messrs. Rivkin and Casey, Washington D.C.-based attorneys, served in the Department of Justice during the Ronald Reagan and George H.W. Bush administrations.


Posted by MisterOpus1 on Sep-20-2009 16:00:

quote:
Originally posted by Shakka
Caught the 2nd part of this debate the WSJ over the weekend. Presents a different angle from what (I think) we've been debating for the last several months (years) now. One has to imagine that at some point SCOTUS will be very much involved in this debate, but I'd imagine not until some sort of legislation is passed that must then be judged. Until then I'd expect them to remain mum on the issue.

I think this applies more to the universal mandate, but the crux of the argument is that it is unconstitutional. Makes for some interesting reading. I agree more with the 2nd article than the first.

2 articles:

http://online.wsj.com/article/SB100...3406386548.html


http://online.wsj.com/article/SB100....html#printMode


If these two jokesters from WSJ are willing to deem any public option as illegal, or requiring us to have health insurance as illegal, then they along with the rest of the Conservative movement is going to be losing their heads if their arguments are proven valid by SCOTUS. Because not only will that kill any new health insurance law, it will effectively destroy Medicare, Medicaid, and Social Security. Best of luck with that one, bub. Whatever remnants there are remaining in that very loud and vocal 25-30% conservative minority you have will most assuredly shrink down to such levels that will never recover.

And sure, we can play strict constructionism all day long, but I'd venture to say if we broaden that blanket out just a little further, we'd find a whole slew of shit that our wonderful so-called "constructionist" conservative members of SCOTUS are completely guilty of bending and twisting a few decisions and laws around, but I digress a bit.

The other thing I tend to wonder about is this - if we were to take their arguments to their logical end, does that essentially also end insurance for other items that we are required by law to have, i.e. house and car?


Posted by Shakka on Sep-20-2009 22:49:

quote:
Originally posted by MisterOpus1
If these two jokesters from WSJ are willing to deem any public option as illegal, or requiring us to have health insurance as illegal, then they along with the rest of the Conservative movement is going to be losing their heads if their arguments are proven valid by SCOTUS. Because not only will that kill any new health insurance law, it will effectively destroy Medicare, Medicaid, and Social Security. Best of luck with that one, bub. Whatever remnants there are remaining in that very loud and vocal 25-30% conservative minority you have will most assuredly shrink down to such levels that will never recover.

And sure, we can play strict constructionism all day long, but I'd venture to say if we broaden that blanket out just a little further, we'd find a whole slew of shit that our wonderful so-called "constructionist" conservative members of SCOTUS are completely guilty of bending and twisting a few decisions and laws around, but I digress a bit.


Just throwing it out there to play Devil's Advocate because I think if it gets that far it will ultimately come down as one of the biggest SCOTUS decisions of all time, given how controversial this issue is. You get too worked up too easily sometimes. Not to sound like Obama, but I think there are decent points to be made on both sides of this issue. I think it makes for a fascinating debate personally (and one that is admittedly beyond my pay grade).


quote:
The other thing I tend to wonder about is this - if we were to take their arguments to their logical end, does that essentially also end insurance for other items that we are required by law to have, i.e. house and car?


I'm glad you brought this up. I mentioned the same thing to a more liberal co-worker of mine because I thought it was a neat comparison that Obama brought up in his speech. To my chagrin, my co-worker pointed out that the auto insurance analogy was, in fact, a false analogy because you have the explicit choice to not have a car and therefore have no obligation to have auto insurance. I'm not saying health insurance is an apples-to-apples comparison necessarily, just that the analogy doesn't hold as well as I originally thought.

Edit: Similarly, not everyone has to own a house (i.e. you can rent an apartment or sub-let, squat with friends, what have you). When I used to rent apartments I generally never got renters insurance (as dumb as that may have been). It wasn't always required and I was more interested in saving a buck now to trade-off on possibly having an issue down the road.

Edit2:

In most states you are NOT required to have automobile insurance unless three conditions are met:

1. You have a valid driver's license
2. You own a motor vehicle
3. You drive that motor vehicle on public highways

Does a 12-year-old riding with a friend to school have to have auto insurance? No. Neither, for that matter, does a 32-year-old. Additionally, when it comes to auto insurance, most states say that you only must have insurance to protect the other driver. You buy health insurance to protect yourself.


Posted by Brahman on Sep-22-2009 21:18:


Posted by Shakka on Oct-01-2009 12:05:

Interesting article in the Times this AM.

quote:

October 1, 2009
Swiss Health Care Thrives Without Public Option
By NELSON D. SCHWARTZ

ZURICH � Like every other country in Europe, Switzerland guarantees health care for all its citizens. But the system here does not remotely resemble the model of bureaucratic, socialized medicine often cited by opponents of universal coverage in the United States.

Swiss private insurers are required to offer coverage to all citizens, regardless of age or medical history. And those people, in turn, are obligated to buy health insurance.

That is why many academics who have studied the Swiss health care system have pointed to this Alpine nation of about 7.5 million as a model that delivers much of what Washington is aiming to accomplish � without the contentious option of a government-run health insurance plan.

In Congress, the Senate Finance Committee is dealing with legislation proposed by its chairman, Max Baucus, Democrat of Montana, which would require nearly all Americans to buy health insurance, but stops short of the government-run insurance option that is still strongly supported by liberal Democrats.

Two amendments that would have added a public option to the Baucus bill were voted down on Tuesday. But another Senate bill, like the House versions, calls for a public insurance option.

By many measures, the Swiss are healthier than Americans, and surveys indicate that Swiss people are generally happy with their system. Switzerland, moreover, provides high-quality care at costs well below what the United States spends per person. Swiss insurance companies offer the mandatory basic plan on a not-for-profit basis, although they are permitted to earn a profit on supplemental plans.

And yet, as a potential model for the United States, the Swiss health care system involves some important trade-offs that American consumers, insurers and health care providers might find hard to swallow.

The Swiss government does not �ration care� � that populist bogeyman in the American debate � but it does keep down overall spending by regulating drug prices and fees for lab tests and medical devices. It also requires patients to share some costs � at a higher level than in the United States � so they have an incentive to avoid unnecessary treatments. And some doctors grumble that cost controls are making it harder these days for a physician to make a franc.

The Swiss government also provides direct cash subsidies to people if health insurance equals more than 8 percent of personal income, and about 35 to 40 percent of households get some form of subsidy. In some cases, employers contribute part of the insurance premium, but, unlike in the United States, they do not receive a tax break for it. (All the health care proposals in Congress would provide a subsidy to moderate-income Americans.)

Unlike the United States, where the Medicare program for the elderly costs taxpayers about $500 billion a year, Switzerland has no special break for older Swiss people beyond the general subsidy.

�Switzerland�s health care system is different from virtually every other country in the world,� said Regina Herzlinger, a Harvard Business School professor who has studied the Swiss approach extensively.

�What I like about it is that it�s got universal coverage, it�s customer driven, and there are no intermediaries shopping on people�s behalf,� she added. �And there�s no waiting lists or rationing.�

Since being made mandatory in 1996, the Swiss system has become a popular model for experts seeking alternatives to government-run health care. Indeed, it has attracted some unlikely American admirers, like Bill O�Reilly, the Fox News talk show host. And it has lured some members of Congress on fact-finding trips here to seek ideas for overhauling the United States system.

The Swiss approach is also popular with patients like Frieda Burgstaller, 72, who says she likes the freedom of choice and access that the private system provides. �If the doctor says it has to be done, it�s done,� said Mrs. Burgstaller. �You don�t wait. And it�s covered.�

While many patients seem content, the burdens fall more heavily on doctors, especially general practitioners and pediatricians.

Dr. Gerlinde Schurter, Mrs. Burgstaller�s physician, says she feels squeezed by government regulators and insurance companies that have fought to hold down costs � most recently with a 15 percent cut in lab fees that forced her five-member group to lay off its principal technician.

Dr. Schurter also fears a so-called blue letter, a warning from an insurance company that she is prescribing too many drugs or expensive procedures.

If doctors cannot justify their treatments, they can be forced to repay insurers for a portion of the medical services prescribed. And while prescriptions are covered, the government has insisted that consumers fork over a 20 percent co-payment if they want brand-name drugs, rather than 10 percent for generics.

Similarly, the government health office also lowered reimbursements across the board for medical devices in 2006.

These are among the reasons health care costs consume 10.8 percent of gross domestic product in Switzerland, compared with 16 percent in the United States, the highest level of spending among industrial countries, according to the Organization for Economic Cooperation and Development.

Still, along with lower costs and the freedom to choose doctors come bigger bills for individual patients. On average, out-of-pocket payments come to $1,350 annually. That is the highest among the 30 countries tracked by the O.E.C.D. and well above the $890 average for the United States, which comes in second.

Then there are the hefty prices of the insurance policies themselves, which can top 14,000 Swiss francs a year for a family of four in Zurich, or about $13,600. That is roughly comparable to the national average annual premium for a family policy under employer-sponsored group plans in the United States, but in high-cost American cities the figure can be much higher.

Direct comparisons are hard to make, however, because in the American system, employers and employees share the cost of premiums, which are also exempt from individual and corporate income taxes.

Nevertheless, Swiss citizens relish the lack of bureaucracy, especially compared with systems in Britain and Germany, even if their doctors grumble.

As in the United States, practitioners typically are paid on a fee-for-service basis, rather than on salary. But they make less than their American counterparts. According to the O.E.C.D., specialists in Switzerland earn three times more than the nation�s average wage, compared with 5.6 times for American specialists. General practitioners in Switzerland make 2.7 times more than the average wage, versus 3.7 in the United States.

That is partly because the Swiss health insurers are not shy about using their muscle with physicians.

Pius Gyger, director of health economics and health policy at Helsana, the country�s biggest insurer, cannot suppress a smile when asked about the effectiveness of the so-called blue letters.

�If there�s something strange, we knock at the doctor�s door,� he said. �For doctors, it�s an incentive to treat economically, but often perceived as a threat.�

He estimates that only about 3 percent of doctors get the letters and that fewer than 1 percent actually have to return money. Still, Mr. Gyger said, �it�s an easy exercise for us and it has an effect.�

Despite pressure on general practitioners, hospital physicians like Edouard Battegay at the University of Zurich say universal coverage also lowers costs by reducing emergency room visits.

Indeed, his E.R. is as quiet and efficient as a Swiss watch, and he still expresses amazement at what he saw when he worked briefly in Seattle.

�I�ve seen things in the U.S. that I�ve never seen here; it was a state of disaster,� he said. �Chronic disease management is better here. If you don�t treat hypertension, you treat strokes. Not treating patients is expensive.�

And even Dr. Schurter � who says her income has been flat for the last five years � praises the virtues of the Swiss system for patients struck by catastrophe.

When her daughter was found to have leukemia seven years ago, �I never worried for a second how and if she�d get treatment and if it would be paid for,� she said. �All was granted as naturally as the air we breathe.�


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