Florida Judge Voids Affordable Care Act

Brian Beutler has the scoop:

A federal district court judge in Florida ruled today that a key provision in the new health care law is unconstitutional, and that the entire law must be voided.

Roger Vinson, a Ronald Reagan appointee, agreed with the 26 state-government plaintiffs that Congress exceeded its authority by passing a law penalizing individuals who do not have health insurance.

“I must reluctantly conclude that Congress exceeded the bounds of its authority in passing the Act with the individual mandate,” Vinson writes. “Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void.”

Jon Cohn says Vinson doesn’t understand either the mandate or the nature of interstate commerce. Various writers at Cato and elsewhere are crowing triumphantly.

Obviously this will eventually end up in the Supreme Court. I suspect the law will be upheld. If it isn’t, I suspect we’ll see the mandate go and be replaced by a tax. Quite possibly this sort of thing will lead us closer to single payer. Frankly, that may be the best outcome we can hope for.

I’ll have more to say about this later when I’ve read the judge’s decision and the relevant commentary. What do you think?

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201 thoughts on “Florida Judge Voids Affordable Care Act

  1. So far judges put on the bench by D’s have supported the law, while judges appointed by R’s have not supported HCR. This is certainly an unfortunate situation. As you say, getting rid of the mandate will just lead to another mechanism to get everybody in, hopefully in a simpler form like a tax. However nothing will ever satisfy those who are just completely against universal coverage.

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    • Replace it with a tax? It is a tax! There’s explicitly no criminal penalty, the mandate is enforced by the IRS which is specifically excluded from using its criminal powers to enforce it. Aside from maybe terminology, exactly what would you change about it in order to make it a tax?

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      • Having the law’s boosters pass it without saying “It’s not a tax and those who are saying it is a tax are liars!” would be a useful start.

        I’m somewhat ambivalent on the mandate. On the one hand, you have to have something to prevent the Death Spiral and preventing indefinite PEC disqualification is a worthy goal. On the other hand, I think that there may be better ways of doing it. And that if you’re going to do this, don’t go around telling everyone it’s not a tax.

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        • OK you can say the laws boosters are liars. More accurately I’d say what it is would be in the eye of the beholder. Legally I’d say its a tax esp. given the fact that there’s nothing illegal about opting not to get insurance and paying the penalty.

          This is in contrast to, say, parking illegally. The ticket or fine may be trivial, say $45 but that doesn’t quite make it the same as a town that runs a parking garage for $45. Economically yes it’s the same but legally it’s not. Form versus function. Economics and most of the time when we talk about policy we care about function. But often form makes a difference if you’re talking law.

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                  • Actually, no. Either I’m missing something or the other team is (or they are willfully misrepresenting Judge Vinson’s ruling). Here’s the quote:

                    “It is even more so when the party to be enjoined is thefederal government, for there is a long-standing presumption “that officials of theExecutive Branch will adhere to the law as declared by the court. As a result, the declaratory judgment is the functional equivalent of an injunction.””

                    Judge Vinson declared the entire ACA null and void. This can be stayed or overturned but it hasn’t yet. Therefore anything the Administration does to implement ACA is in contempt of Judge Vinson’s order.

                    Maybe the Administration will stop implementation of ACA but I don’t think they will and I don’t think they can afford to. If it does, the illusion of the inevitability of ACA being upheld is gone. My guess is there will be requests for injunctions starting tomorrow. If an injunction against the feds ever does go into force I think we can get ready for Obamacare’s funeral.

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                    • Koz, you’re either missing something or you don’t understand the difference between a declaratory judgement and an injunction.

                      On the injunction question, it’s complicated, but it’s also kind of stupid, because in the end of course the government is going to be able to legally continue implementing the law.
                      [Vinson] entered a declaratory judgment—a declaration that the law is unconstitutional–not an injunction. If you don’t comply with an injunction, you’re in contempt of court. By contrast, you can “violate” a declaratory judgment with impunity. But in practice parties do not defy DJs. The reason is that, once a DJ had been entered, the person who got it can go back to court and get an injunction automatically, on the basis of the DJ. A DJ is often used against the government, because the court does not want to suggest that the government has to be threatened with contempt. The idea is: I (judge) know that you (government official) will comply once I tell you what the law is; I don’t have to order you to comply.

                      If he had entered an injunction, the US would immediately have sought a “stay pending appeal.” That means the injunction can’t be enforced while the case is on appeal. The US would seek the stay from him; if he denied it, from the 11th Circuit; if the 11th Circuit denied it—which would be inconceivable, in this case, in my view–from the S. Ct. Technically, a DJ does not have to be stayed, because it doesn’t require the US to do anything. But my guess is that the US will seek a stay anyway, just to make things clear. There is a risk that if the US seeks a stay, and the court of appeals says “we’re not granting a stay, because you don’t need it, since this is only a DJ” then that will be portrayed as a loss for the US. Vinson’s little maneuver—I’ll enter a DJ, and I’ll suggest you have to comply right away, but I won’t make it an injunction—is just jerkiness, designed to put the government in an awkward position without Vinson’s owning up to what he’s doing.

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                    • “On the injunction question, it’s complicated, but it’s also kind of stupid, because in the end of course the government is going to be able to legally continue implementing the law.”

                      For someone who is complaining about my supposed incoherence recently, you’re awful slow on the uptake. I personally wouldn’t be betting that the Administration will try to implement Obamacare because until Judge Vinson’s ruling is overturned, modified or stayed, there is no law to implement (“null and void” must be big words for you or something).

                      It’ll be interesting to see what the Administration does. They could

                      1. stop Obamacare till the legal dust settles.
                      2. ignore Judge Vinson’s ruling (or pretend that other judges who have found ACA constitutional are controlling).
                      3. try to get some kind of stay or modification.

                      I don’t think they can afford #1. I don’t think they’ll do #2 cuz they’ll look like retards if Ken Cuccinelli or the Institute for Justice gets an injunction on the strength of Judge Vinson’s order. That leaves #3. Frankly I’d like to see their pleadings when and if they go down that road. If they lose, Obamacare is mostly dead even before it gets to the Supreme Court.

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                  • I think that the substantive argument is something to the effect of “if it’s wrong, wrong and obviously wrong, it doesn’t matter how long we’ve been doing it”.

                    I mean, Jesus. We could use your exact same argument for why homosexuals shouldn’t get married.

                    “You’ve had your whole life to get used to the idea that two guys can’t get married. Should we instead base the law on your feelings?”

                    Seriously.

                    I thought you were a progressive.

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                • Not to be curt about it, but the interstate commerce clause is pretty vague and honest people can draw different lines. A long long time ago we went down the path of drawing an expansive line that covered not only interest commerce directly but also indirectly (like growing a global commodity).

                  Now I’ll respect you if you want to overturn all that but I do not believe that’s what this judge is doing nor would the SC if they overturned it. They would cherry pick this law, as partisans, to overturn with an ad hoc limited reading of Interstate commerce while leaving all other precedents more or less untouched (keep in mind, for example, that state’s legalizing pot for medical purposes were shot down by this SC on Interstate commerce grounds). That’s judicial activism.

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                  • Was United States v. Lopez judicial activism?

                    United States v. Morrison?

                    Gonzales v. Raich was a deep disappointment, true. Scalia, given the choice between mocking Wickard and slapping a hippie chose to slap the hippie. Sigh.

                    But then, like, immediately… we’ve got Gonzales v. Oregon which goes back against the grain. Judicial activism?

                    (Seriously, if growing wheat on your own farm has a notable effect on interstate commerce, voluntarily dying would be a goddamn earthquake on it.)

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                    • Lopez and Morrison both share a common trait in that they can be said to be twice or more removed from interstate commerce. Growing your own wheat and pot are once removed from interstate commerce because doing so, in fact, impacts the interstate trade of a good that the Constitution gives Congress the power to regulate. This would not have been so strange sounding several hundred years ago when it was common for the crown to grant monopolies on various aspects of commerce (importing tea, printing playing cards etc.). Bad economic policy? Yes. The Constitution didn’t outlaw it though. Contrary to popular libertarian mythology, the Constitution did not enshring Milton Friedman’s Free to Choose.

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                    • This would not have been so strange sounding several hundred years ago when it was common for the crown to grant monopolies on various aspects of commerce (importing tea, printing playing cards etc.).

                      Yay. Progress.

                      Bad economic policy? Yes. The Constitution didn’t outlaw it though.

                      See, I thought it pretty explicitly *DID* until a bunch of judges worrying about the executive packing the court went along with his power grab… and now, of course, it’s 80 years later and “settled law” that people just need to get used to.

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                    • For example, in terms of the US granting a monopoly, we have Gibbons v. Ogden which was decided in 1824. In the case NY had granted Robert Livingston a monopoly to operate steamboats on all NY’s waterways. Gibbons was operating a competiting service from NJ.

                      What’s relevant here is:

                      1. While it didn’t square with Adam Smith, the colonial era was quite familiar with and even comfortable with gov’ts granting monopolies.

                      2. The SC ruled that NY’s grant was unconstitutional since it interfered with interstate commerce.

                      Given this, suppose the gov’t wanted to grant a monopoly to a producer of wheat or pot for medical use. Where is your ‘explicit’ Constitutional prohibition on this?

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                    • And, of course, if the Congress decided to grant a monopoly over wheat production the individual farmer growing wheat for his own consumption would be impacting interstate commerce, like it not….

                      Which is really your problem. You don’t like the idea of Congress telling a farmer what to do with his own wheat production…neither do I but bad policy != Unconstitutional Policy.

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                    • Where is your ‘explicit’ Constitutional prohibition on this?

                      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?

                      Surely a government agency could have just made alcohol Schedule 1.

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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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                    • “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?”

                      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.

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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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                    • Wheat isn’t commerce?

                      I think, by your own admission, that it is a step removed from interstate commerce.

                      And your only asserting its not interstate because you want to limit ICC to just being direct commerce.

                      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?

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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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                    • I’m not really seeing how you can read “between the states” as an expansive definition allowing restrictions on entirely in-state commerce.

                      And–look. This thing where we say “it’s entirely in-state commerce” and you say “well THAT DOESN’T MATTER because they SAID that they could DO IT ANYWAY”. This thing is really getting annoying, because it’s the same kind of reasoning that says cops shouldn’t be investigated because the cops are never wrong because they’re the cops.

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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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                    • “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.”

                      Can we please remember that this whole thread is in response to Wickard v. Filburn, in which case it was explicitly stated and demonstrated that the wheat in question was solely for personal use?

                      If “personal cultivation reduces the market” is an actual justification then you’re effectively saying that 100% of everything that anyone does must be for someone else. Cooking dinner for yourself is now illegal because it reduces the demand for restaurants…

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                  • I probably want to overturn some of it, most of it or all of it, but let’s also acknowledge that Judge Vinson’s ruling isn’t claiming to overturn those precedents and there is an actual argument along those lines.

                    Ie, even if Congress can regulate you growing wheat in your own backyard, it might not follow that it can force you to purchase health insurance against your will.

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            • How exactly does this work. Suppose Congress passed a law they said was a tax on people who made over $10M a year. The people who wrote the law said it was a tax, the law itself was titled “Tax on people who make over $10M a year”. Various boosters and activists call the law a tax on people who make over $10M a year.

              The law says “If you make over $10M a year you must report to the IRS office and have your left hand cut off.” Outraged people who make over $10M a year go to court and argue that this isn’t a tax, its a punishment and since the have not been given due process of law the courts should bar the gov’t from enforcing it.

              What does Justice Trumwill say? That because people called the law a tax it legally is a tax and should stand? Form versus substance.

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              • First, Justice Trumwill is not a Justice. Second, Non-Justice Trumwill has already said that the legislators’ claim notwithstanding it probably is a tax.

                Third… I am not prepared to say with absolutely certainty that intent does not matter. If, in the above case, those proposing the law say, over and over again that it is not a tax, then maybe – just maybe – that should be taken into account when determining whether or not it qualifies as a tax. In this case, they didn’t just decline to call it a tax. They expressly said that it was not.

                The only way this is irrelevant is if we agree that lawmaker intent does not matter. Maybe some constitutional expert can correct me here and say “Nope. Intent never matters,” in which case I will hop off the fence.

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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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                • I mostly agree with your function argument, but I do not consider the alternative argument to be absurd nor those suggesting it to be dishonest. I do know, though, that had they actually put the word “tax” into the law rather than “penalty”, that this discussion would largely be moot (as far as I am concerned). But they didn’t and it was neither an accident nor an oversight.

                  And so… at this point I think it is for the courts to decide. Due to the language in the law, it’s a close enough of a call that I’m not going to cry bloody murder either way.

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                • “‘Intent’ doesn’t void actual language.”

                  Right from the bill itself:

                  “Requirement To Maintain Minimum Essential Coverage- An applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month.”

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                  • Mr. Koz seems to be reading the actual text of the bill, more than most of those who voted for it did.

                    Dude deserves some props, if only for his gluttony for punishment. Some of us are even tempted to call it patriotism.

                    As for the rest of you giving him shit, you should at least share his suffering first before doing so.

                    THESE are the times that try men’s souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands by it now, deserves the love and thanks of man and woman. Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph. What we obtain too cheap, we esteem too lightly: it is dearness only that gives every thing its value. Heaven knows how to put a proper price upon its goods; and it would be strange indeed if so celestial an article as FREEDOM should not be highly rated.

                    CAPS in the original…

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      • “Congress’s failure to call the penalty a “tax” is especially significant in light of the fact that the Act itself imposes a number of taxes in several other sections (see, e.g., ……..)). This shows beyond question that Congress knew how to impose a tax when it meant to do so. Therefore, the strong inference and presumption must be that Congress did not intend for the “penalty” to be a tax.”

        http://online.wsj.com/public/resources/documents/101410healthcareruling.pdf

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        • Wait, so one had to buy these items on the market? I hadn’t realized that. I thought that each man had merely to “provide himself” with certain materials — materials that could have been his older brother’s or his father’s.

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          • The Selective Service obligation is still there, so I guess I’m living in the present.

            Let me tell you something, Scott. When posters start attacking me personally when I’m trying to make what I think to be a valid argument, I smell weakness. Now you keep a civil tongue in your head, fella. Selective Service registration is binding on all American males of a certain age. That’s an “individual mandate” and it’s perfectly Constitutional. Either address the issue, or talk to the hand.

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            • I addressed your moronic argument when I said, “The Selective Service doesn’t require your son to purchase anything does it?” That is when you started reliving your past life and wouldn’t answer they question since you knew that you couldn’t.

              But if you want to be specific, at least get your facts right. Militia members didn’t have to purchase those items they just had to provide them. 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.

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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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              • The operative phrase here is “individual mandate”. This has absolutely nothing to do with the Commerce Clause. It’s all about the government’s ability to mandate anything at all, something our Taliban Conservatives seem to resent.

                The payment issue is a complete red herring. The whole point of Unconstitutional in the case resolves to the two words “individual mandate”, something clearly established in US v. O’Brien.

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                  • Now we’re talking. That’s the question here: if Congress can oblige its citizens to register for Selective Service, file a tax return etc., there’s an Individual Mandate.

                    Gegen Dummheit ist kein Kraut gewachsen. The Taliban Conservatives want everything strictly limited to the Constitution? Let’s start talking about repeal of the PATRIOT Act.

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                    • Your distaste for people with alternative perspectives is duly noted. However, the point seems to remain that Selective Service and tax returns are both specifically geared towards accomplishing goals outlined in the constitution as being under the federal government’s purview.

                      The Mandate, however, is in service of a goal that may be constitutionally permissible, but is not outlined as one of the duties or prerogatives of congress.

                      Further, while some sort of tax filing is necessary in order to perform the duties allowed in the 16th Amendment, and Selective Service could be necessary for the organization of a militia, it has not been demonstrated that a mandate is the only possible way to meet the goals of PPACA. It is merely the manner that they chose.

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                    • Then by those lights, the Federal Income Tax ought to be repealed. Any time the Conservatives don’t like something, they hold up the Constitution like the Ten Commandments. When it comes to the Fourth Amendment, they’re somewhat less obstreperous in their defense of What We Hold Dear. It’s all so much political hooey and everyone knows it. The two judges who say this is unconstitutional are both Reagan appointees. The two who say it is are both Clinton appointees.

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                    • The Commerce Clause has nothing to do with this argument. That’s my whole point. The government doesn’t do health care, with the possible exception of military MOS medics. The government has obliged its citizens to purchase health care if they’re able to do so. It’s deductible. You’d think the Conservatives would view this, as the health insurance industry did, as a net benefit, since the Law of Large Numbers kicks in and they don’t have to cherry pick policies.

                      This is what I do. I’m currently doing a great big health insurance company franchise. I’ve done five franchises for this same company. Anyone who’s against “Obamacare” simply doesn’t understand how it works. Everyone benefits when everyone participates. It’s the most common-sense approach to the problem imaginable. It could be better in some ways, but it’s a private industry solution to an enormous public problem.

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                    • You think that conservatives are insincere, inconsistent, and hypocritical. I get that. I do. If that was your main point, I wish I had realized that sooner and I could have saved us both some time. When you put forth a comment on selective service as a precedent for the mandate, I thought we were talking about whether or not selective service was a precedent for the mandate. That was the discussion I was interested in having.

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                    • Trumwill: Perhaps we differ in our definitions of American Conservative. Mine encapsulates the following entirely reasonable viewpoints: Conservatives prefer small changes to large, less government to more, personal autonomy to regulation. They favor the needs of business over those of the larger society, believing with considerable evidence society cannot benefit where capitalism is unduly restrained.

                      American Conservatism has a problem. It cannot square Personal Autonomy with Corporatism. There is a need for regulation in some respects, even the most ardent Libertarian will admit so. There is a happy medium, the zenith of some parabola.

                      At one zero of that parabola is Totalitarianism, where the State owns everything. People pretend to work at the jobs they are assigned and the State pretends to pay them. At the other zero, we have Anarchy, where Force and Fraud run rampant.

                      While WF Buckley was alive, he could bedazzle the rubes of both Populism/Libertarianism and the Conservative Elites. He held together this fractious coalition for some time, but the schism was much older, going back to the Whigs and their divisions, one of which became the modern Republican Party.

                      If I see the Modern American Conservative as inconsistent, I am hopefully demonstrated why. As for insincere, I have made no such charge. We will either be governed by laws or by men. You may not have both.

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                    • Blaise, the issue isn’t so much that I disagree with you about the state of corporatism as much as I am uninterested in the discussion. I have 100,000 problems with the way that conservatives have handled health care and any number of issues. I could go red in the face, sputtering in rage on the subject. But that doesn’t change my thoughts, good and bad, on the PPACA, or whether the mandate is comparable to selective service or IRS forms.

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                • BlaiseP:

                  The Selective Service is still alive and it still doesn’t require you to purchase anything.

                  The Commerce Clause is the crux of the matter as that is the main argument behind the Obama admin’s defense of the PPACA whether you like it or not.

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                  • The money doesn’t enter into this question. Stop repeating yourself, it was nonsense then and nonsense now. Now see here: the judge didn’t complain about anything but the constitutionality of the “individual mandate”. I’m pointing to other Individual Mandates.

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                  • BlaiseP:

                    But it is not a tax, no matter what you might like to call it, it is a penalty enforced by the IRS. 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. As for auto insurance, the fed gov doesn’t have the power to make you purchase that either.

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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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                    • Eh, Boonton, I’m not sure that is so true. I can be fined for traffic or parking violations without the same due process guarantee. Sure, I can have a hearing, but I can’t request a jury of my peers and the burden of evidence is far different. Whether this is right or wrong (I’ve long questioned the Constitutionality of our driving/parking court system), it is. And there is no reason the government can’t continue to do it in other ways.

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                    • Boonton:

                      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?

                      No, the gov’t doesn’t have the power to force you to buy auto insurance and if they tried we would be in court exactly where we are now with this illegal mandate to buy health insurance.

                      You and BlaiseP seem well meaning but rather misinformed about Constitutional law. I would suggest that you both go to your nearest law school and enroll.

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                    • 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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                    • Boonton-

                      Are you sure about that whole Bill of Rights and state/federal thing? If you are, couldn’t that mean that states could theoretically deny any of those rights (presuming they made the necessary adjustments to their state constitutions)? Could they deny freedom of religion or the press or speech? If you are indeed right (and I have no factual reason to believe you aren’t… just shock and revulsion), that is a scary thought indeed.

                      I suppose the US Constitution could be amended in much the same way. But to think that these rights weren’t inherently extended to the states until the states voluntarily took them up (or didn’t, in certain cases) is scary.

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                    • Are you sure about that whole Bill of Rights and state/federal thing? If you are, couldn’t that mean that states could theoretically deny any of those rights (presuming they made the necessary adjustments to their state constitutions)? Could they deny freedom of religion or the press or speech?

                      They could (and did) prior to the 14th Amendment.

                      Since then, we’ve got a Doctrine of “Incorporation”. (Google “Incorporation of the Bill of Rights” and visit the wikipedia page for a semi-decent summary (at this moment in time, anyway) of the theory/doctrine and visit the primary documents down at the bottom for much more in depth sources.)

                      That is to say, the rights protected by the Federal Gummint must be protected by the State Gummint. (And those protections are a floor, not a ceiling.)

                      But that does mean that if the Federal gummint thinks that of course the Nth Amendment doesn’t mean *THAT* that your State gummint doesn’t have to believe that it does.

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    • I’m curious as to the legal arugment behind this. Some laws are written with self-destruct severability clauses that state that if any aspect of the law is held unconstitutional the entire law is void. The argument here sounds like it plays on the “but the law’s boosters said it” idea.

      If you drop the mandate there’s a real danger that the prohibition on pre-existing condition dropping could make the law very expensive to private health insurance…even put it out of business. Policy wise that’s undesirable but legally what’s stopping it? Congress could, if it wanted, pass a law banning health insurance. Just because a law may appear expensive is a argument for legislatures to take up, not judges.

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      • Well, isn’t this the exception that proves the rule?

        If every other freakin’ law passed by the Congress has a severability clause and this one does not… doesn’t that demonstrate that the law was intended to be abandoned if any part of it was found unconstitutional?

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        • Every other law does NOT have a ‘self destruct’. Usually you put a ‘self destruct’ clause in a law because you have two or more sides who agree to give and take and they don’t want to see their taking ruled unconstitutional while other people’s taking remains on the books so you write a clause into the bill that says the bill becomes void should any part of it be found unconsititutional (or you can have a variation like a particular section is voided should anything be deemed unconsititutional but other sections stay).

          Clearly if every bill had an ‘assumed self destruct’ there’s be no need to write them. Quite often with a big complicated bill you DONT want a self destruct. Would you want to reauthroize the entire military because some minor section of the code had a Constitutional problem or would you just have that section overturned while leaving everything else?

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          • Per TPM, the truth is somewhere in between. The lack of a severability (or non-severability) clause means that the judge has a degree of discretion over the matter:

            “If there were a severability clause, it would mean that the court could strike down a particular provision of the law, and the rest of the law would remain in place,” says Timothy Jost of Washington and Lee University. “[However] since there is no severability clause, it does not necessarily mean that if the court strikes down a particular provision the rest of the law collapses…. the normal rule is that partial invalidation is the required course.”

            If Virginia district court judge Henry Hudson rules that Congress had no business compelling people to buy insurance, then he’ll also have to determine which of the law’s other provisions must also be stripped. That could easily include popular measures like the one banning discrimination against people with pre-existing medical conditions.

            The court would additionally have to determine which provisions are too intertwined to be decoupled: i.e., which parts of the law Congress believed required the individual mandate.

            This sounds about right to me. You can remove the mandate, as well as what the mandate is in the law to provide for (PEC coverage) while leaving the rest, which does not rely on the mandate, in tact.

            Incidentally, that last part strikes me as a judge taking into consideration what congress believed to be the case and not just what is written in the law.

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    • Legally speaking, there would have to be a severability clause or some equivalent to indicate the legislature’s intent that the law withstand the loss of certain provisions. Otherwise, it must be assumed that the legislature did not submit to a redacted version of the law.

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    • I think it’s interesting how supporters of the Act say we’re supposed to conform to the exact language in the “tax versus mandate” sense, but we’re supposed to just understand that the Act includes severability even though the text doesn’t say any such thing.

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  2. This is going to be decided by the SCOTUS and it was likely always going to be that way.

    Today’s decision, like the 3 others where judges made rulings and the dozen or so other instances when the cases were tossed, is just an exhibition game.

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  3. Let’s make our SCotUS predictions:

    No one will recuse themselves from this one.
    Thomas and Scalia will argue that the government is limited by the Constitution from doing things like this.
    The other seven will argue that, of course, the government is not limited from doing things like this.

    (I may be wrong about Scalia.)

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    • Scalia has said that stare decisis matters so he will not just overrule any law so the ACA may easily fit into existing law.

      Then again Bush v Gore so he is perfectly willing to engage in explicitly political rulings.

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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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  4. I appreciate all the smart talk on this Obamacare matter and it’s all much appreciated, even the opinions I don’t agree with. However, is it possible that we’re witnessing (I heard Krauthammer point something like this out) a change in the public’s perception of the FDR/LBJ/ commie-Dem “entitlements” and their ultimately horrific costs not only in financial terms but also in the relationship of the individual/family to the state/gummint?
    I don’t know if citizens ‘trained’ for several generations to slobber when they hear/read ‘gummint handouts’ would reject this Marxist bile and suddenly become righteous republicans turning their collective back on the gummint teat (Obama’s stash!)?

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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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      • Well, I’d go for a ‘gummint’ out of everything! NO subsidies of any sort for anyone, ever! You wanna car, buy one. You wanna house, feel free to get a loan…you pay, no subsidy based on race, sex, or ‘social justice’ bs.
        What would it be like if the gummint was outta everything?

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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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  5. I said all along they should simply raise taxes on everyone 1% and give a tax break to people with insurance to offset it. Achieve the same thing. That is how the Republicans have done it for years, right? They don’t believe in entitlement programs… they just give tax breaks/exemptions to their favored folk.

    Personally, I disagree with the mandate on a variety of levels, but support health care reform overall. That may leave me in the minority here, but so be it. The reason the mandate is there is to appease the insurance companies. The fear was that people who needed and uses health care would take advantage of the new options while the people who usually don’t use health care (young adults) wouldn’t. The system is built on the back of young adults (they’re dubbed “invincibles” by the industry)… they pay their premiums every month but only go to the doctor once a year. The industry demanded them, ironically enough.

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    • The system is built on the back of young adults (they’re dubbed “invincibles” by the industry)… they pay their premiums every month but only go to the doctor once a year.

      Well, yeah. If you only pay for insurance when you’re sick, it’s not insurance.

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      • You are missing my point.

        At my job, a 25-year-old and a 50-year-old pay the same premiums. The 25-year-old goes to the doctor once a year. The 50-year-old goes once a month. If the 25-year-old were smart, he wouldn’t buy insurance (though this isn’t necessarily an option and won’t be with the mandate). If he were to do this, the 50-year-olds premiums would go up. The insurance companies take a lost on some people only because they take gains on many others.

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        • Why is that a smart decision for the 25 year-old?

          Is he psychic enough to know that he will never get in a car accident or tear up his knee playing basketball?

          Not having insurance is financially suicidal.

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          • No. But he can make a calculated risk assessment. I’ve paid thousands of dollars in health care premiums over the last few years and taken very few benefits. Had I saved that money this whole time, I’d be prepared to pay for any short-term major medical care I needed. As Boonton points out, it is not quite that simple, but the idea that everyone should have insurance “JUST IN CASE” is misplaced.

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            • “I’d be prepared to pay for any short-term major medical care I needed. ”

              This assumption is so misguided. Do you have any idea how much healthcare costs? It is way more expensive to pay out of pocket for the same procedure. Then when you are 50 you will never have anything even tangentially related or that can be construed that way paid for by you expensive premiums.

              That is why it is madness to skip-out on health-insurance; the risk is absolutely huge.

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              • But it’s a calculated risk. And one that people should be free to take. There are also better options (like HSAs) that most young people don’t have an opportunity to take. I’m not saying I would eschew health care entirely for the rest of my life. But many young adults (and others, I’m sure) can probably do without the level of health care they currently have. Catastrophic care would probably be enough for most. Do I really need a prescription drug plan? Probably not. If I have a 1 in 1000 chance of contracting a given disease and would pay 10X or even 100X as much out of pocket than through insurance to treat it, the math is on my side to indicate it would be more cost effective to forgo insurance. Obviously, there are other issues than just the cost. But humans are notoriously bad at risk assessment. No where is this better demonstrated than when it comes to the purchasing of insurance.

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                • You know that I don’t write love letter to the individual mandate.

                  And speaking of freedom perhaps the Republicans could stop trying to tell other people what to do with their healthcare plans and HSAs.

                  Especially stop requiring that they be forcefully raped instead of raped to use the plans they pay for to get an abortion. It is almost like they don’t think rape is real unless you get beaten too.

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                • I’m not sure you have the right to risk having no coverage. As a practical matter, the costs of emergency room visits by the uninsured are huge and in many cases could be vastly reduced if we just purchased insurance for them. As a moral one, we’re rightly uncomfortable with the idea of people dying for the lack of care that could have been provided, even if they deliberately decided to do without insurance.

                  The problem with the mandate isn’t that we’re forcing people to buy insurance, its that we’re forcing them to buy really expensive insurance they probably don’t need and in a more rationally ordered world would not want. I’d have no qualms about a mandate that forced everyone to buy subsidized, one-price-fits-all, high-deductible insurance against true emergencies and then left the rest up to the individual.

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                  • “I’m not sure you have the right to risk having no coverage. ”

                    “The problem with the mandate isn’t that we’re forcing people to buy insurance, its that we’re forcing them to buy really expensive insurance they probably don’t need and in a more rationally ordered world would not want.”

                    I think from a distance there is a problem with this line of thinking about healthcare.

                    Young healthy people do need heavy, heavy subsidization of their healthcare costs. They just don’t know it yet. As I say over and over, health insurance is not like home insurance, where chances are you’re house won’t burn down. You don’t have cancer or some illness with a catastrophic price tag? Don’t get hit by a bus and you will – eventually. If only the people who need insurance right now are the only ones paying for it through premiums – a trend that is in fact increasing, due to the rising cost of healthcare and subsequent premiums – then it will soon be unaffordable.

                    Insurance only works if those that don’t need the benefit this year pay in far greater number than those that do.

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                    • I agree health insurance is not like home insurance, but I’d be more radical and say that health insurance is not like home insurance because its not insurance. If you’re insuring against an event that is actually inevitable, its not insurance – its just a lousy kind of savings plan. We’re in trouble because we’ve chosen to structure it as insurance, and then chosen to add all kinds of tax breaks and subsidies to try to make the fundamentally flawed idea less broken.

                      So, yes, in order to make sure everyone who needs it can get coverage, you need to include lots of people who don’t need it in the “insurance” pool. But the logical extreme is that everyone pays and everyone who needs care gets it. I think there’s a name for that … let me think now … oh, yes SOCIALISM!!!!!!

                      Actually I have no problem with that. Grew up in the National Health Service. Have the teeth to prove it. It has many, many good points, but the obstacles to single payer in the US are multifarious.

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                    • “I agree health insurance is not like home insurance, but I’d be more radical and say that health insurance is not like home insurance because its not insurance.”

                      Wow, Simon, awesome comment. This is the most perceptive thing I’ve seen someone post about health insurance in a long time. Are you in the industry by chance?

                      EIther way, awseome point.

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                  • Well, my full argument includes a note that people who opt out of insurance (both regular healthy care and catastrophic care) must food all medical bills themselves. So, if I think I’ll never get hurt and have absolutely no insurance, I can only go to the emergency room if I have the means to pay. I may empty my bank account, max out my credit cards, borrow from friends and family, but one way or another, I’m responsible for the money. Now, ideally, all people would opt for at least catastrophic care coverage so no one would lose their house over an illness, but such is a risk that people should be entitled to take.

                    The current issue is not necessarily that people are choosing to take a risk and then failing to accept the consequences (nor are they forced to)… the issue is that people have no options. Health care is too expensive to buy individually for most folks and if they are not receiving it through work, they’re pretty much out of options. Decouple health insurance from employment, make affordable options for people, and let people make real choices and accept real consequences.

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              • This doesn’t detract from your point, but you’d be surprised the amount of money you can sometimes save if you tell a doc that you are paying cash. I know that insurance companies negotiate down rates, but sometimes you can get even lower by letting them avoid the billing process.

                This does not apply to emergency rooms, however.

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          • “Why is that a smart decision for the 25 year-old? Is he psychic enough to know that he will never get in a car accident or tear up his knee playing basketball?”

            Why are you talking as though health care is inherently expensive and there’s no possible way for a person to pay for it on their own?

            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.

            I admit that I’m not taking into account the pre-tax nature of the premium payments, but the point is that it’s not out of the question for someone to buy their own doctoring, even with an expensive chronic condition like diabetes.

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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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              • “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….” ”

                That’s what catastrophic coverage high-deductible insurance is for. It’s like car insurance; the only time you get a payout is if you lose the car through damage or theft.

                “Even though it may not have been obvious, you probably did benefit from the counter weight your insurance played with your doc. ”

                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.

                …or, at least, that’s how I’d play it, if the doctor didn’t have an entire population of people who were used to letting their insurance pay for all of everything.

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                • 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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                  • But he doesn’t only get my $40 co-pay. He gets $40 from me plus a certain amount from the insurance company. I’m not paying the insurance company to simply guarantee me a lower rate. I’m paying them so that they will shoulder some of the costs.

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                  • “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. ”

                    What, so he’ll lose a little bit on each patient and make it up in volume? :D

                    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.

                    “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.”

                    And I can honestly afford to take my ass down the street to a doctor who can honestly afford to charge me the market rate for service.

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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.

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                    • “Well no if the rate was so low that each patient was a net loss then he would go out of business.”

                      Yeeeesss, and…

                      “H makes money at $40…”

                      Bingo. He makes money at $40. He can therefore afford to charge me $40. Maybe he’d like to charge me more and get more profit, but that his decision–and then it’s my decision to say “it’s not my moral responsibility to pad your pockets”.

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                  • I don’t even know where to start with this, but every premise in your comment is wrong.

                    Doctors form negotiating groups if they are not already part of a hospital or clinic, and pre-negotiate a fixed cost for each chargeable item with an insurance company. The doctor does not know, nor care, what the patient pays – unless the patient becomes a collections issue for whatever small portion her owes.

                    Next, an insurance company does not “send” patients anywhere. Patients do gravitate toward “preferred providers” because the cost for services has, in essence, already been paid for through the purchase of an insurance premium.

                    Lastly, a doctor does not charge whatever he thinks he can get away with if there is no carrier involved. For most non-preventative maintenance, they won;t provide the service unless under certain conditions (e.g.: emergency) where most states have a set amount that they can charge a patient.

                    You really must stop thinking about the economics of healthcare and healthcare insurance as being just like Walmart.

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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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          • My point was primarily that the mandate was a concession to the insurance companies. Many are decrying it as some sort of liberal socialism Marxist communism… or whatever. In reality, it was caving to big business. What’s more Republican than that?

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    • Who are these young people that don’t get colds, don’t need birth control, don’t have mental health issues, don’t drive(or bike, or ride in a bus, or walk) and therefore never get hurt in car accidents, etc?

      Who are these people? The only people who don’t seem to want health insurance desperately are libertarians it seems. Everyone else seems to want it even if they can’t afford it.

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      • I’m not a libertarian, but were it not for PEC issues and/or a mandate and/or employer contributions, I would be indefinitely relying on catastrophic coverage. I can take care of my own colds and even my meds would be cheaper. The main reason I get regular insurance is because of all of the legal incentives to do so. I suspect that this is true of a lot of young people.

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      • The reasons people want insurance are many , but in most cases have nothing to do with actually needing the insurance coverage in the actuarial sense. To pick a few:

        1. Many doctors and hospitals won’t accept OOP payments or attempt to charge ridiculous prices which mysteriously are much lower if you have insurance.
        2. Even where providers do have reasonable OOP charges, the system is still not geared up for them. Its both time consuming and painful to have to have to find them, explain and negotiate.
        3. In most states, its only possible to buy insurance that is vastly excessive for what people need, thanks to regulations that require insurers to cover child birth, prescription drugs, chiropracty, faith healing, homeopathy, and probably voodoo ceremonies to boot.
        4. Most employers do not allow employees to cash out health insurance, thanks to the way group insurance works. You either take it or don’t take it, so why not just take it?
        5. Its tax free. Given the choice between buying your viagra with pre-tax and post-tax money, which would you rather do?

        The chance of an actual unforeseen medical event is rather a long way down the list. I’ve never used my health insurance for anything I wouldn’t have happily paid out of pocket were it not for the factors above.

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        • Simon, I have paid out of pocket for three stretches totalling three years or so. Points 1 and 2 really did not apply at all. The third is sorta right and sorta wrong (you can get it in most states, but it’s not desirable due to the conditions attached). The fourth and fifth, as well as what I said about 3, are the main reason that I got comprehensive insurance as soon as I could.

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        • The other reason that people tend to have insurance for reasons other than needing it in the actuarial sense is that until January 1st, insurance companies had been very very proficient in precisely those actuarial calculations (way, way, way more proficient than average consumers), and allowed to make strict business decisions based on them, that it had become essentially impossible to choose to purchase a plan that covered the condition that made it the case that you needed coverage in the actuarial sense. That’s kind of the nature of the industry, and our insurance companies had evolved to be very fit operators in that environment. They’ll still do okay, of course, because of all the factors you list, as well as the individual mandate to some extent. But the environment has changed significantly now in such a way that now those that do need insurance in the actuarial sense will now be able to get insurance that actually covers the condition that makes that the case (or change jobs or carriers without losing the coverage they have for those conditions).

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            • The problem with COBRA (an unavoidable one) is that it seems like the insurance companies want to drop you. The last time around, my wife’s carrier and my own both did everything they could to prevent us from signing up within the 60-day period. I said at the time that I had never seen anyone so enthusiastic about preventing you from giving them money for their service, but since they do it because they have to and not because they want to, I guess it makes sense.

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              • No doubt that’s true – I’ve heard the same from several other people. Although I must admit I don’t understand the economics – you’re still a member of the same group, and they’re getting paid the same amount of money, so what changed? Do they consider the fact you’re bothering to sign up to be adverse selection? That would be my guess, but given the continuing coverage thing that’s a huge reason to sign up that has nothing to do with being sick.

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                • Do they consider the fact you’re bothering to sign up to be adverse selection?

                  I’m pretty sure that’s it. I don’t really understand how that works, though. It seems to me that if you throw up barriers, those that are going to try the hardest to pound through them are the ones with the strongest financial incentives (ie the most health problems) while the healthy ones that they would make a profit off of are the most likely to shrug it off.

                  But they’re not dumb, so I have to assume that I am wrong.

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                  • Thinking about it more, I think its an interesting bit of game theory, actually, and I suspect that there’s only one equilibrium – only people who expect to need it pay COBRA, and insurers make it as hard for them as possible. If insurers do nothing, at least some healthy people will choose not to pay, since its expensive, and you just lost your job after all. That changes the composition of the risk pool, so naturally the insurer would charge more, but that’s illegal, so they introduce non-monetary costs to try to push people out. But of course this only impacts the people whose expected medical costs are relatively small. Which further changes the composition of the risk pool ….

                    If the insurer had perfect knowledge, they’d give discounts to the people who otherwise would not have paid to keep the risk profile intact, but of course they don’t know who those people are.

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              • I suspect it’s because for large companies the cost of health insurance is basically the cost of the people covered plus an administrative fee. For a terminated employee on COBRA, if they end up paying more than they use then that’s great for the employer. It helps lower the cost for all their remaining employees. But if they cost more than they pay then that just raises the cost to remaining employees.

                Now how do they know? They don’t but they figure if you’re laid off your money is probably very tight, why would you be so eager to keep coverage with what little you have? Maybe ’cause you know more about your health than they do. Hence better safe than sorry, make you jump thru some hoops.

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                • Yeah. Adverse selection. But it seems to me that it would only get more adverse when you put the barriers up. Among the admittedly adverse group that is likely to seek coverage, it’s those that most need the coverage that will do things like drive two hours in the snow to hand-deliver a check to their corporate office (which we did for my wife’s account).

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    • “he system is built on the back of young adults (they’re dubbed “invincibles” by the industry)… they pay their premiums every month but only go to the doctor once a year. ”

      Except that they don;t, which is part of the problem. As health care costs rise, a greater and greater percentage of young and healthy people choose to forgo paying premiums until they are in a higher risk situation – which means that the subsidization of costs is minimized.

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      • There is certainly a reasonable point about so called “invincibles.” However it should be noted that young people, especially the women folk, do seem to have kids pretty often. Those young families either go without, go to state/fed funded clinics, get free immunizations from the state or more importantly end up Gov insurance of some sort. Hell the old admin assist in my office, who obviously had a job, got our state version medicaid. Plenty of young people need help to get insurance.

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          • I pretty strongly disagree with this. It was really common among my peers to forgo insurance whenever it wasn’t offered by employers and it was mostly an “I’m not sick” justification. Had one friend who discovered he needed knee surgery and managed to get insurance and scam the insurance into paying for it.

            I mean, sure, if the insurance was free or a ridiculously trivial sum, they would get it. But even a couple hundred dollars a month on insurance you probably won’t need versus a couple hundred dollars a month on something else was very often not a very close call.

            I typically got catastrophic insurance, but it was really a joke (it was pretty clear that they would drop you as soon as they could after you made any sort of claim). It was a piece of paper I could later use to say that I was insured so that PEC would be covered under future group health care plans.

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        • And the problem is that that number is growing, and we expect that growth curve to increase over the next few years Because not only will the cost of premiums continue to rise, but the employer subsidization (which historically has increased as costs have) is tapped out, which means for the first time ever in this country individuals are absorbing all of their own premium increases.

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  6. 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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  7. I just wanted to point out that there’s an abortion post above this, yet this post continues to dominate the recent comments section on the sidebar. I guess the only thing that can compete with abortion is health care reform.

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  8. Hopefully, this won’t affect the stash of medical marijahoopee I’ve been looking forward to.
    I have an old knee injury that causes me to say, “Fish you!” to people at random intervals.
    Only marijahoopee can help.

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    • Perhaps in the modern world it’s an empty set or very nearly so. Why logically or constitutionally couldn’t it be? It seems perfectly plausible to me given changes in the nature and practice commerce since 1787 (not to mention largely a question of definitions, which can and demonstrably do change over time).

      So what then? It seems to me it’s up to people to say what they think can’t be regulated under a given provision when legislatures try to do it, case by case. And it seems to me that that is exactly what is going on right now.

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      • Perhaps in the modern world it’s an empty set or very nearly so. Why logically or constitutionally couldn’t it be?

        If we’re going to come out and say that there is *NOTHING* that does not fall under Federal Jurisdiction, I’d just like that hammered out now.

        That’s all.

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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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        • Well, no problem then, because we’re not saying that. It’s just unknown at this time. No, in other words, you get no guarantees. The Commerce Clause clearly authorizes some federal jurisdiction under a vague definition, so we’re obviously going to be hashing out what is included in it perpetually, not “now,” or at any other one time in a way where it doesn’t change. It has to be decided case by case, as attempts to regulate come up. It’s not people supporting ACA who say that if it stands, then we’re at the bottom of the slippery slope. Supporters merely think that health insurance is an interstate business, so it can be regulated federally. Let the people who want to say this means there is nothing that can’t be regulated address whether they’re wrong about that or not; it’s their claim, and they’re plenty capable.

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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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    • 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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        • Actually not quite. The two laws that were struck down (a law about domestic violence and another law about having a gun near a school) were built on that ‘more than twice removed’ argument over commerce. That law that stood was the Federal law prohibiting pot even when a state passed a law permitting it for medical purposes and took pains not to involve ‘interstate commerce’ by demanding the pot be grown and sold in state only. Even though the Feds were trying to prohibit interstate commerce in pot and the state law seemed consistent in that, congress’s ability to regulate interstate commerce still extends to trumping such state laws that simply ‘effect’ the interstate market by, say, reducing a state’s demand to buy pot.

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            • Probably not because I don’t think you can construct such a scenario. At best you get once removed and while Justice Thomas is on record of not being a fan of once removed, Scalia is. I hope he enjoyed ‘slapping down’ those hippies hawking pot for medical purposes. Doing so he’s written himself into a corner where he’d either have to let Obamacare stand or be a judicial activist doing what McCain and Palin failed to do in the last Presidential election.

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              • Well, I have to admit that if I tried, I’d expect a lot of No True Scot arguments from you; or, rather, a lot of “well that’s not REALLY removed” kind of arguments.

                It’s pretty clear that your definition of “interstate commerce” is “whatever I want it to be to make my argument valid”.

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