ACA in the Supreme Court Catch-All

Robear wrote:
Sure, if people had health insurance to begin with, but that's a catch-22: if the person has health insurance, then they are active in health insurance commerce in the first place. We're talking about people without health insurance here.

I was talking about whether something was legal under the Commerce act. The issue is, is health insurance part of the interstate commerce subject to the clause? I think that it is. If it is, it can be regulated.

Sure, but can inactivity be regulated? That's issue. Of course health insurance is subject to it, and if you go out and buy it the government can regulate it, but can the government make you go out and buy it that's the issue here.

Think of it this way: if these commerce clause regulations that govern what a farmer can or cannot grow in his field are precedent for mandating the purchase of health care insurance, why can't the government mandate a farmer plant his field with a certain crop?

The broccoli argument is particularly misplaced. No one is saying that you have to buy a particular level or type of insurance. You don't even have to participate; you just will probably be better off financially if you do.

I'm saying you don't want to make an argument about things people did while a minor makes them 'active' in an area and therefore subject to regulation--especially when it comes to broccoli--if you're going to make a counter-argument that talk of mandated broccoli is silly based on the logic of those two sources.

Sure, but can inactivity be regulated?

Sure. It is illegal in almost every state to drive while uninsured.

CheezePavilion wrote:

Sure, but can inactivity be regulated? That's issue.

As the article I quoted on the first page noted:

The uninsured don’t exist apart from commerce. To the contrary, their medical care results in some $43 billion of uncovered health care costs annually and, through cost-shifting, adds $1,000 a year to the average cost of a family insurance policy. People who don’t want to buy broccoli or a new car can eat brussels sprouts or take the bus, but those without health insurance are in commerce whether they like it or not.

There is no inactivity when it comes to health care. Aetius and Malor say this is a government created dilemma (and unless I missed it, did not explain how insurance does not fall under the Commerce Clause), but the government has no control over mortality and the march of time. I'd wager the response to Nomad is "You can always not drive a car," (if not that, it'll be something about that being a state thing) but you can't not age, or will yourself not to be involved in an accident. There is, of course, a requirement that if you show up at a hospital in need of emergency care, they have to treat you, but the alternative, allowing them not to treat your sucking chest wound until they're sure you can pay, isn't exactly appealing. I'd rather not give corporations the right to let me die because my HR department f*cked up, on top of all their other new magic powers.

Anyway, Lithwick on Day 1.

Nomad wrote:
Sure, but can inactivity be regulated?

Sure. It is illegal in almost every state to drive while uninsured.

You can always not drive a car.

SpacePPoliceman wrote:
CheezePavilion wrote:

Sure, but can inactivity be regulated? That's issue.

As the article I quoted on the first page noted:

The uninsured don’t exist apart from commerce. To the contrary, their medical care results in some $43 billion of uncovered health care costs annually and, through cost-shifting, adds $1,000 a year to the average cost of a family insurance policy. People who don’t want to buy broccoli or a new car can eat brussels sprouts or take the bus, but those without health insurance are in commerce whether they like it or not.

There is no inactivity when it comes to health care. Aetius and Malor say this is a government created dilemma (and unless I missed it, did not explain how insurance does not fall under the Commerce Clause), but the government has no control over mortality and the march of time. I'd wager the response to Nomad is "You can always not drive a car," (if not that, it'll be something about that being a state thing) but you can't not age, or will yourself not to be involved in an accident.

Okay, but like I said on the first page in response to that note: Wait, wouldn't people who eat brussel sprouts and take the bus be in commerce whether they like it or not too just like those without health insurance? I agree you can't not age, or will yourself not to be involved in an accident, but you also can't not eat. You can't not involve a piece of farmland you own in commerce at some point, so can the government tell you to grow broccoli on it?

edit:

There is, of course, a requirement that if you show up at a hospital in need of emergency care, they have to treat you, but the alternative, allowing them not to treat your sucking chest wound until they're sure you can pay, isn't exactly appealing. I'd rather not give corporations the right to let me die because my HR department f*cked up, on top of all their other new magic powers.

I think it's really important in having this debate to distinguish between what we'd like and what the law requires. Now, this isn't going to be some John Roberts balls-and-strikes case: our personal sense of what is and is not convincing is going to play a part no matter how closely we try to judge this case in terms of the established law. However, that doesn't mean we shouldn't keep separate our 'this is how I would judge the case if I were a justice' opinion and our 'this is what I hope happens' opinion.

Cheeze, someone not eating does nothing to the price of my food, but when they do end up in the hospital they haven't been eating and have no insurance, that does do something to the price of my insurance. If you want to further create a semantic morass, you'll have to take it up with Linda Greenhouse.

The odd thing in this whole debate is that it's not about the government's power to provide healthcare for citizens. Tomorrow Congress could institute a single-payer system and that would be it. You'd fold in medicare, Tricare, medicaid, etc. into one big pool. The government could then tax people and hire private contractors to run the program without any kind of constitutional problem.

But when the government takes itself out of the position of middleman and requires people to purchase insurance directly from a vendor, it's a violation of basic American freedoms to opt out of mandatory insurance programs. I mean, I get the legal argument. But it's a distinction that's resulted from America's bizarre desire to avoid a single-payer program despite all the advantages it brings.

SpacePPoliceman wrote:

Cheeze, someone not eating does nothing to the price of my food,

I disagree. The laws of supply and demand say that it will most definitely have an effect on the price of your food. There's even a Supreme Court case at the heart of the definition of Commerce clause powers, where it was held that getting your chicken feed from your own sources was in violation of Congress' regulation of the commercial wheat market:

Is a man growing wheat on his own land to feed his own chickens engaging in interstate commerce? Apparently, yes (Wickard v. Filburn, 1942). Is a 12th-grader carrying a concealed .38-caliber revolver to school engaging in interstate commerce? Not necessarily (United States v. Lopez, 1995). Is a woman growing marijuana in her own home, for her own use, engaging in interstate commerce? Apparently, yes (Gonzales v. Raich, 2005). Is a man who declines to purchase health insurance engaging in interstate commerce? Depends on whom you ask. LINK (with some more links to discussion of the topic on that page--I don't recall seeing this issue come up in the links we have so far).

If you want to further create a semantic morass, you'll have to take it up with Linda Greenhouse.

If you want to have further dialog, refrain from this kind of behavior. In fact, from your own link:

This is just too much for Justice Samuel Alito who breaks in to say: “General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax. Has the court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?”

If you don't think a Supreme Court case regarding the extent of Commerce clause powers and whether Congress went beyond its constitutional powers ISN'T going to involve semantics...

Robear wrote:

The broccoli argument is particularly misplaced. No one is saying that you have to buy a particular level or type of insurance.

That is precisely what the PPACA does - not only is it a mandate to have a minimum amount of health insurance coverage, but you're breaking the law if you don't and will be fined.

Simply dismissing the broccoli argument doesn't work, because the "broccoli mandate" would be based on the exact same legal logic as the PPACA - indeed, ruling the PPACA constitutional would strengthen the argument because the government would be taking over payment for health care for a pretty large number of people. What the Supreme Court is worried about here is not this particular law, but the precedent this decision will set. The government's lawyers have yet to offer even a cogent legal argument about how the broccoli mandate would be unconstitutional. In fact, they've admitted that under this logic, it would be constitutional - as would virtually any other mandate.

The government does not approve the private insurers.

They already do, in a hundred different ways. That's entirely what the argument over contraception was about - the government ordered insurance plans to provide contraception, even when the institution paying for the plan disagreed. Companies will be unable to sell insurance that doesn't meet the government guidelines, and that has to be verified - hence, approved.

It instead states that insurers must offer packages with certain features. This is also true for any government plans. Insurers can offer a huge variety of options - it's not at all "one size fits all", not in any way.

You're again missing my point - the "one size fits all" choice is to mandate that health insurance is the way people must pay for health care. The fact that people have choices in what insurance they get is irrelevant - they are being forced into one way of accessing the health care market.

If you choose not to buy insurance, you are fined, yes. But you have not broken a law unless you don't pay the fine. You could choose to pay the fine, and pay for health care out of pocket. It's your call.

Right - because the precedent the SC is really looking to set here is that the government can assess penalties against you without you having broken any laws. Of course the penalty means you've broken the law, because the law specifically orders you to purchase health insurance from a third party. That is what makes it a penalty and not a tax.

CheezePavilion wrote:

I don't think those differences are significant when the question is "can the government fine you for inactivity?"

The technical difference is that FICA is a tax, and the mandate penalty is not - plus, FICA is applied to activity (employment), while the mandate is not. If you're unemployed, you don't pay FICA, while with the mandate the government is essentially making it illegal not to have health insurance as long as you're breathing.

I mean, you are familiar with where I stand on both issues, but it's clear that this is pretty significant step beyond even the wide-ranging limits the Supreme Court has set up until now.

CheezePavilion wrote:

If you want to have further dialog, refrain from this kind of behavior.

It's hard to see it as a dialogue, Cheeze, when you're being, seemingly, deliberately obtuse. If you don't see the difference between Step 1- Not Buying Something, Step 2- Not Getting Something, and Step F- Someone Else Paying More for a Low Demand Item and Step 1- Not Having Medical Care, Step 2- Needing and Receiving Medical Care, and Step 3- Everyone Else Defraying the Cost, I'm not even sure a proper semantic morass is possible. If you can show that receiving medical care is somehow not an activity within medical care commerce, then maybe there can be a dialogue.

Aetius wrote:
CheezePavilion wrote:

I don't think those differences are significant when the question is "can the government fine you for inactivity?"

The technical difference is that FICA is a tax, and the mandate penalty is not - plus, FICA is applied to activity (employment), while the mandate is not. If you're unemployed, you don't pay FICA, while with the mandate the government is essentially making it illegal not to have health insurance as long as you're breathing.

I mean, you are familiar with where I stand on both issues, but it's clear that this is pretty significant step beyond even the wide-ranging limits the Supreme Court has set up until now.

What I'm trying to say is that when the mandate will require someone to buy health insurance, the mandate is applied to activity--earning money--and when it is applied to inactivity, the government subsidizes the cost of the health insurance anyway. I think there's something to be made of the difference between a mandate on the inactive that requires them to pay money and a mandate on the inactive that requires them to simply register for and accept government subsidies.

It's like if the government came out with a national food stamp plan, and it required the inactive to register for the plan. I think there's an argument there that distinguishes between a penalty for not buying something, and a penalty for not doing the administrative work to accept something for free: the former may not be within those wide-ranging limits, but I think the latter is.

To go back to something else I know your stance on and maybe helps clarify what I'm saying, it's like filling out a Census form beyond those questions directly authorized by the Constitutional text.

SpacePPoliceman wrote:
CheezePavilion wrote:

If you want to have further dialog, refrain from this kind of behavior.

It's hard to see it as a dialogue, Cheeze, when you're being, seemingly, deliberately obtuse.

I highlighted the important word there.

SpacePPoliceman wrote:

If you don't see the difference between Step 1- Not Buying Something, Step 2- Not Getting Something, and Step F- Someone Else Paying More for a Low Demand Item and Step 1- Not Having Medical Care, Step 2- Needing and Receiving Medical Care, and Step 3- Everyone Else Defraying the Cost

Is there a constitutionally relevant difference? From what I've read, the Commerce clause cases see "Someone Else Paying More for a Low Demand Item" as sufficient: they don't require "Everyone Else Defraying the Cost" as a consequence of Congress not stepping in and regulating the market in order to uphold the law. The argument "Congress can't make you buy broccoli because of Step F" and "Congress can make you buy health care coverage because of Step 3" need to be different from a Constitutional law standpoint if the question is: "well, does this mean it's constitutional for Congress to make you buy broccoli if they can make you buy health care coverage."

Like I said to you before: "I think it's really important in having this debate to distinguish between what we'd like and what the law requires."

CheezePavilion wrote:

Is there a constitutionally relevant difference?

Well, I'm no Constitutional scholar, but in the first case, there is no Commerce happening--the person not buying is only participating in the high-minded realm of ideas where the difference between action and inaction and effect becomes hazy, a fascinating discussion, but not on the court regularly weighs in on. In the second case, Commerce is happening--they get treatment, and their getting that treatment increases cost for everyone else. The latter commerce exists, the former commerce doesn't. Seems silly to keep hammering on someone else's case example.

You've maintained there's inactivity, and failed to show how. Again, you'd be better served going down that path.

SpacePPoliceman wrote:
CheezePavilion wrote:

Is there a constitutionally relevant difference?

Well, I'm no Constitutional scholar,

Sorry--that turn of phrase just strikes me as hilarious after jumping to the ad hominems like, two replies into a conversation about the Constitution.

but in the first case, there is no Commerce happening--the person not buying is only participating in the high-minded realm of ideas where the difference between action and inaction and effect becomes hazy, a fascinating discussion, but not on the court regularly weighs in on. In the second case, Commerce is happening--they get treatment, and their getting that treatment increases cost for everyone else. The latter commerce exists, the former commerce doesn't. Seems silly to keep hammering on someone else's case example.

You've maintained there's inactivity, and failed to show how. Again, you'd be better served going down that path.

You keep jumping ahead in the timeline when you talk about medical care in a way you don't when you talk about eating. Treatment does not occur at the point where a person decides not to purchase health care insurance, just like eating does not occur at the point where a person decides not to buy food. You're not seriously arguing that medical treatment will occur earlier and more inevitably than eating, are you?

I found the scotusblog that Robear linked to particularly informative.

Their argument for constitutionality of ACA is that currently people have a choice: they can purchase health insurance, or they can self-insure. Both are commerce. By placing a penalty on the self-insured, the state is not requiring people to engage in a particular commercial activity, because self-insuring is already commerce.

The only people who could claim to actually refrain from this kind of commerce are the religious fringe who refrain from all modern medicine, and courts have found parents guilty of criminal negligence for failing to provide children with medicine.

So the precedent is pretty clear: before ACA was passed, it was already true that no one can abstain from participating in medical commercial activity. They either chose to participate by purchasing insurance or choose to participate by self-insuring. That being, the state placing a penalty on the self-insured is pretty clearly (from my POV) not requiring them to do anything they are not already required to do. Deadbeat self-insured people place a burden on responsible citizens, and thus the state has a clear and compelling interest, under the commerce clause, to regulate this commerce.

I've yet to read an clear explanation of how self-insuring is not a form of commerce. Especially since the precedent has been established that certain kinds of medical care (immunization, infection disease, care of minors) can be mandated.

Oso wrote:

Deadbeat self-insured people place a burden on responsible citizens, and thus the state has a clear and compelling interest, under the commerce clause, to regulate this commerce.

Quite. That does seem to be the unadorned, pure heart of this matter.

SpacePPoliceman wrote:
Oso wrote:

Deadbeat self-insured people place a burden on responsible citizens, and thus the state has a clear and compelling interest, under the commerce clause, to regulate this commerce.

Quite. That does seem to be the unadorned, pure heart of this matter.

So why can't the state make people join food co-ops? No one can abstain from participating in nutritional commercial activity. They either chose to participate by purchasing groupons or choose to participate by paying retail. Calling them "deadbeats" or others "responsible" is rhetoric, not analysis, and really doesn't help when it comes to the argument that upholding the ACA on these grounds means the government can make you eat your broccoli.

"Self-insurance"? And people say I argue semantics...

Oso wrote:

and thus the state has a clear and compelling interest, under the commerce clause, to regulate this commerce.

Just to keep things accurate, here's Wikipedia on the commerce clause--the government doesn't even have to meet that burden:

http://en.wikipedia.org/wiki/Commerc...

CheezePavilion wrote:
SpacePPoliceman wrote:
Oso wrote:

Deadbeat self-insured people place a burden on responsible citizens, and thus the state has a clear and compelling interest, under the commerce clause, to regulate this commerce.

Quite. That does seem to be the unadorned, pure heart of this matter.

So why can't the state make people join food co-ops? No one can abstain from participating in nutritional commercial activity. They either chose to participate by purchasing groupons or choose to participate by paying retail. Calling them "deadbeats" or others "responsible" is rhetoric, not analysis, and really doesn't help when it comes to the argument that upholding the ACA on these grounds means the government can make you eat your broccoli.

"Self-insurance"? And people say I argue semantics...

Going by Wickard v Filburn, it seems that is within the state's power.

One line of thought has been on my mind for the past few days.
In law, ignorance of the law is not a valid defense. You can't possibly know everything there is to know in the various federal, state and city statutes and ordinances, yet should you wander into their field of play, you will be held accountible.

But it seems like it is the fashion of the day to demand not just ignorance, but willfull ignorance as a right or entitlement in almost every other area. You are allowed to not have health insurance because it is a valid choice to be blind to the fact that sickness and injury can happen to you at any time. That if it is so severe and costly, it will be paid for by magic money by dipping into everyone elses's pockets.

But that's because we force hospitals to give them that care. Free healthcare is a gift we're giving them, and you can't then turn around and force someone to do things your way because you're giving them a gift.

Otherwise, it's not a gift, it's a string you're gluing to their hand.

If you want to provide free healthcare to people without insurance, fine. But that gives you no right to then insist that they buy health insurance.

Also, it's not the people who are using the free care required by law of hospitals that are the problem. The problem is the people who don't get sick and who don't pay into the program. Remember, this is insurance: it's where people pool their money together to cover their aggregate costs. That means some people will pay more into the system than they will get out of it unless the insurance fund is earning profits by investing those health care insurance policy premiums.

When a person uses the hospital for free, the 'costs' to society of them being uninsured are only whatever their premiums (plus the money that could have been made by investing those premiums) would have added up to. If someone would have paid in $100 worth of premiums but winds up with $1,000 dollars worth of health care costs, they still only cost 'society' a hundred bucks. Whether we pay for the uninsured with higher health care insurance premiums or higher taxes, a dollar is a dollar.

There are a lot of great things about the ACA. The cost savings from people going to the doctor early when they have a tingle instead of the emergency room later on when their johnson is about to fall off are immense, and getting people on insurance plans encourages that kind of preventative care: it's the reverse of a moral hazard. The ability to negotiate for drug prices and medical services by pools as opposed to individuals is fantastic in terms of consumer leverage. Lots of good stuff! However, let's not lose sight of the fact that insurance at the simplest level works on the basis of the lucky paying in more than they get out of their plan and the unlucky getting more out of their plan than they paid in.

Malor wrote:

But that's because we force hospitals to give them that care. Free healthcare is a gift we're giving them, and you can't then turn around and force someone to do things your way because you're giving them a gift.

Otherwise, it's not a gift, it's a string you're gluing to their hand.

If you want to provide free healthcare to people without insurance, fine. But that gives you no right to then insist that they buy health insurance.

Except it's not "free" to anyone other than those people who receive it. Someone is paying the bill and in this case that someone is us.

Bear wrote:
Malor wrote:

But that's because we force hospitals to give them that care. Free healthcare is a gift we're giving them, and you can't then turn around and force someone to do things your way because you're giving them a gift.

Otherwise, it's not a gift, it's a string you're gluing to their hand.

If you want to provide free healthcare to people without insurance, fine. But that gives you no right to then insist that they buy health insurance.

Except it's not "free" to anyone other than those people who receive it. Someone is paying the bill and in this case that someone is us.

It's not free for them either--they are still billed, and often put in even greater financial ruin than they already may well be. Characterizing that as a "gift" is, to say the least, in poor taste.

We require hospitals to provide emergency care to everyone, because really the alternative is rather chilling.

Malor wrote:

If you want to provide free healthcare to people without insurance, fine. But that gives you no right to then insist that they buy health insurance.

Am I skimming or have we already discussed the difference between being forced to do something and being assessed a fee for choosing not to do something?

The government actually insists that I obtain a social security card before I work. If I work under the table, I am both assessed a fine (different than a fee, fine = punishment while fee = recouping costs incurred.) and forcibly kept from working until a card is obtained. The government also insists that I not manufacture MDMA or LSD in my basement. When the FBI does catch people doing this, they don't assess a fee, they send the person to jail and fine them. *That* is what happens when the government insists that something happen.

On the other hand, assessing a fee is more like a tax. When I visit a national park, I am assessed a fee to enter. When I choose to remain uninsured, I am assessed a fee (after 2014 and with waivers available for people who cannot obtain affordable insurance) Saying the government forbids me from remaining uninsured is logically the same as saying the government forbids me from visiting Yosemite. I am free to either, for a fee.

I think there is a significant difference between the two cases: between a fine and a fee. In one, the Government *is* insisting that individuals act in a certain way. In the other, fees are charged to recoup incurred costs.

Malor wrote:

If you want to provide free healthcare to people without insurance, fine. But that gives you no right to then insist that they buy health insurance.

However, I think congress is well within its powers to provide incentives, positive and negative, to encourage people to buy insurance, which is what the individual mandate reads to me.

Where the ACA challenge fails is an inability to phrase the issue in a manner capable of getting the law overturned. The issue is really whether the use of taxation incentives or coercion(depending on your bent) is adequately tied to a legitimate congressional goal. You are not going far arguing that healthcare is state only, and not an interstate commerce issue. You are not going far challenging congress' authority to tax.

Whatever political persuasion you are under, banging the drum of shrinking government, huge federal spending will not get you far in federal courts.

Except it's not "free" to anyone other than those people who receive it. Someone is paying the bill and in this case that someone is us.

So STOP GIVING THE GIFT OUT. It's not a gift if you're gluing strings to their hands.

And Congress flat refuses to pay for the programs it's already running; adding healthcare into that pile is a guaranteed long-term trainwreck.

Congress has a list of enumerated powers, and nakedly forcing anyone into contracts with third parties against their will is not one of those powers.

Oso wrote:

On the other hand, assessing a fee is more like a tax. When I visit a national park, I am assessed a fee to enter. When I choose to remain uninsured, I am assessed a fee (after 2014 and with waivers available for people who cannot obtain affordable insurance) Saying the government forbids me from remaining uninsured is logically the same as saying the government forbids me from visiting Yosemite. I am free to either, for a fee.

Wouldn't it be more like if the government charged you a fee for not buying an admission pass to Yosemite than for visiting Yosemite? I understand the point that there are plenty of fees which are basically just targeted taxes and you should feel perfectly free to consider yourself a good citizen even if you are incurring them, but I can't think of a fee that has ever been charged to people under the Commerce clause power for not doing something, even something in advance of a practically inevitable event. There's always *some* action that triggers the fee charge beyond just being a future consumer in the marketplace.

This is a serious question, by the way, not a rhetorical one: is there something in the tax code related to consumer protection or something I'm unaware of? I don't know of anything like this, but then again, I don't know every little thing the government charges us money for.

Malor wrote:

So STOP GIVING THE GIFT OUT. It's not a gift if you're gluing strings to their hands.

And Congress flat refuses to pay for the programs it's already running; adding healthcare into that pile is a guaranteed long-term trainwreck.

Congress has a list of enumerated powers, and nakedly forcing anyone into contracts with third parties against their will is not one of those powers.

Unfortunately the problem isn't black or white. The vast majority of institutions are required to give the gift out. Either the patient is going to pay for it, the government is going to pay or insured are going to pay for it.

In a black and white world we'd give people the option to buy healthcare. Those who refuse would be denied any treatment and allowed to die on the sidewalk.

If bearing the full and crippling financial burden of expensive emergency life-saving treatment, requiring most to declare bankruptcy and so on counts as a "gift", do not expect a birthday invite from me.

There were several mentions of previous penalties for inaction on day 1, mostly to do with administration of (presumably interstate) financial transactions. I believe one involved required paperwork for complicated wills. If you don't do the required paperwork, you will be fined; but you won't be arrested if you pay the fine.