liberal tolerance - Justice Scalia at Wesleyan University

[detbuch]

Originally Posted by spence

My understanding is that the argument against is that if I opt out of insurance, there's no activity to be regulated and the Federal government can't regulate inactivity...i.e. no commerce.

As I've stated above, meanings of words in the Constitution have intentionally been changed to mean other than what the framers meant. To correctly "interpret" the words, a judge should apply the meanings at the time of ratification. And, when, in dictionaries of the time, multiple meanings existed, the context of the Constitutional phrasing and the recorded arguments at ratification and collateral literature such as newspapers, the Federalist Papers, etc. should be consulted. The context within the Constitution and wide usage of articles at the time as well as the Federalist Papers reveal a consistent meaning of "regulate" as used in the Constitution meant something like "to make regular" or "to make well-functioning." Nowhere is there an indication that to regulate, as used in the Constitution, meant to prohibit an activity nor to force activities that would infringe on the sovereign rights of the People. Prohibiting "inactivity" is clearly not a function of "regulate" as used in the Constitution. But, as I say, meanings of words such as "regulate" have been transformed from the narrow definition that was obvious at ratification to convenient "interpretation" that allowed the Federal Gvt. power it was not, clearly, intended to have. FDR's court was the main turning point.

But we all know that the uninsured place a large burden on the entire health care system nationally.

So there's really no such thing as inactivity.

That's not only a non-sequitur, but a contradiction. First, it doesn't follow that because the uninsured, supposedly, place a large burden that there is really no such thing as inactivity. Then to say that something which doesn't exist places a burden, is actually saying that that something DOES exist. Also saying that by not actively participating in the purchase of insurance is not inactivity in such participation means that all inaction is action. This may be true in some absolutist, minimalist philosophy in the same sense that no matter what we do, or don't do, is in some measure, responsible for the condition of the world. That may be true, but we do make verbal distinctions that are necessary for well functioning lives and societies. And if choosing not to participate in an activity means we have actually chosen to participate, we are doing so in a different way toward a different end. That is freedom of choice and association which is not to be abridged by the Federal Gvt.

Perhaps this is simplistic, but I believe is at the core of the Administration's case, at least in respect to the commerce clause. And to me it does make perfect sense.

It makes perfect sense to one who subscribes to current progressive interpretation of "regulate" and "commerce." In researching the meaning of "commerce" at the time, it also was consistently used in the narrow sense of actual trade and barter. Even though dictionaries of the time had other usages of the word, it was not used in the proceedings, writings, etc. of the time in other than the narrow definition. Also the Constitution limits Federal regulation to interstate (among the States) commerce. But, again, under FDR's Court, the definition of Commerce was expanded to mean anything that in the aggregate could somehow affect commerce. And this interpretation was allowed to apply within a State or locality, lifting the interstate requirement. Which is to say, everything we do, or don't do can somehow, no matter how remotely, affect commerce. These interpretations mean that the Federal Gvt. can "regulate" you to do whatever it wishes. Is that, is or is that not, tyrannical? And, if that is what the framers meant, why bother with the rest of the Constitution? The Constitution could have been reduced to one sentence--The Federal Government has the power to regulate.

That's not to say the entire legislation is perfect. I think there are many other measures regarding tort reform and competition that could also help reduce costs.

-spence

As I have agreed with you, there is a good chance that the Court will uphold the HCB, because of settled "interpretations" that have rewritten the Constitution. That we don't, as a society, see the erosion of our individual liberties by allowing another far-reaching intrusion into our lives because we are worried about the cost of health care means that we have accepted the administrative state as our benevolent benefactor, and have abrogated not only our personal responsibility to secure our own health care, but also our personal responsibility to secure the rights that were originally granted in the Constitution. And we, as individual sovereigns envisioned by the Founders, and including the Congress and POTUS, were all to be guardians of the Constitution, not just the SCOTUS. When Bush (my turn to insert the Bush did-it-too syndrome) did not veto the finance reform bill saying that he believed it was unconstitutional, but he was leaving it to the Court to decide, he was, in my opinion, in dereliction of his duty. We also, by our consent and acquiesence to whatever the Court says, are derelict in ours. But, who knows? there has been a small trend to originalism in the Court, and there is a crescendo rising in political discourse about return to Constitutional governance. Maybe the Court will try to reverse the course of Federal expansion.

[spence]

Originally Posted by detbuch

As I've stated above, meanings of words in the Constitution have intentionally been changed to mean other than what the framers meant. To correctly "interpret" the words, a judge should apply the meanings at the time of ratification. And, when, in dictionaries of the time, multiple meanings existed, the context of the Constitutional phrasing and the recorded arguments at ratification and collateral literature such as newspapers, the Federalist Papers, etc. should be consulted. The context within the Constitution and wide usage of articles at the time as well as the Federalist Papers reveal a consistent meaning of "regulate" as used in the Constitution meant something like "to make regular" or "to make well-functioning." Nowhere is there an indication that to regulate, as used in the Constitution, meant to prohibit an activity nor to force activities that would infringe on the sovereign rights of the People. Prohibiting "inactivity" is clearly not a function of "regulate" as used in the Constitution. But, as I say, meanings of words such as "regulate" have been transformed from the narrow definition that was obvious at ratification to convenient "interpretation" that allowed the Federal Gvt. power it was not, clearly, intended to have. FDR's court was the main turning point.

I've read that about a $1000 of a health care insurance premium is actually to compensate for costs born by the uninsured. This seems to be to be a quite irregular situation that would benefit by being made regular.

That's not only a non-sequitur, but a contradiction. First, it doesn't follow that because the uninsured, supposedly, place a large burden that there is really no such thing as inactivity. Then to say that something which doesn't exist places a burden, is actually saying that that something DOES exist. Also saying that by not actively participating in the purchase of insurance is not inactivity in such participation means that all inaction is action. This may be true in some absolutist, minimalist philosophy in the same sense that no matter what we do, or don't do, is in some measure, responsible for the condition of the world. That may be true, but we do make verbal distinctions that are necessary for well functioning lives and societies. And if choosing not to participate in an activity means we have actually chosen to participate, we are doing so in a different way toward a different end. That is freedom of choice and association which is not to be abridged by the Federal Gvt.

I think you just made the Administration's case

Of course if we were to mandate that everybody is on their own...

It makes perfect sense to one who subscribes to current progressive interpretation of "regulate" and "commerce." In researching the meaning of "commerce" at the time, it also was consistently used in the narrow sense of actual trade and barter. Even though dictionaries of the time had other usages of the word, it was not used in the proceedings, writings, etc. of the time in other than the narrow definition. Also the Constitution limits Federal regulation to interstate (among the States) commerce. But, again, under FDR's Court, the definition of Commerce was expanded to mean anything that in the aggregate could somehow affect commerce. And this interpretation was allowed to apply within a State or locality, lifting the interstate requirement. Which is to say, everything we do, or don't do can somehow, no matter how remotely, affect commerce. These interpretations mean that the Federal Gvt. can "regulate" you to do whatever it wishes. Is that, is or is that not, tyrannical? And, if that is what the framers meant, why bother with the rest of the Constitution? The Constitution could have been reduced to one sentence--The Federal Government has the power to regulate.

At the time the Constitution was drafted most health care was dispensed by ones barber. Today my x-ray is read in near real-time by a doctor in India.

As I have agreed with you, there is a good chance that the Court will uphold the HCB, because of settled "interpretations" that have rewritten the Constitution. That we don't, as a society, see the erosion of our individual liberties by allowing another far-reaching intrusion into our lives because we are worried about the cost of health care means that we have accepted the administrative state as our benevolent benefactor, and have abrogated not only our personal responsibility to secure our own health care, but also our personal responsibility to secure the rights that were originally granted in the Constitution. And we, as individual sovereigns envisioned by the Founders, and including the Congress and POTUS, were all to be guardians of the Constitution, not just the SCOTUS. When Bush (my turn to insert the Bush did-it-too syndrome) did not veto the finance reform bill saying that he believed it was unconstitutional, but he was leaving it to the Court to decide, he was, in my opinion, in dereliction of his duty. We also, by our consent and acquiesence to whatever the Court says, are derelict in ours. But, who knows? there has been a small trend to originalism in the Court, and there is a crescendo rising in political discourse about return to Constitutional governance. Maybe the Court will try to reverse the course of Federal expansion.

I thought conservatism subscribed to the belief in the value of mundane knowledge that has been weathered by time. If a court finds an interpretation of the Constitution to be valid -- and it's stood the test of time -- doesn't this enter somehow into the mundane collective?

While there should be tremendous respect for the founding fathers obviously, doesn't the wisdom of those who've followed also count for something?

-spence

[detbuch]

Originally Posted by spence

I've read that about a $1000 of a health care insurance premium is actually to compensate for costs born by the uninsured. This seems to be to be a quite irregular situation that would benefit by being made regular.

-spence

Here's another read for you:

Posted at 12:00 PM ET, 06/10/2011TheWashingtonPost
Is health care cost-shifting real?

By Jennifer Rubin


In the U.S. Court of Appeals for the 11th Circuit earlier this week, the government’s lawyer and the Obamacare challengers’ lawyer faced off on the legality of the individual mandate. The Obama administration’s lawyer was on the defensive, as the Associated Press reported:


Acting U.S. Solicitor Neal Katyal sought to ease their concerns by saying the legislative branch can only exercise its powers to regulate commerce if it will have a substantial effect on the economy and solve a national, not local, problem. Health care coverage, he said, is unique because of the billions of dollars shifted in the economy when Americans without coverage seek medical care.

“That’s what stops the slippery slope,” he said.

As a preliminary matter, this sort of rationale is inappropriate for constitutional analysis. If the Constitution prohibits the government from forcing you to buy something you don’t want, why does a policy argument (cost-shifting) suddenly bestow constitutional legitimacy on the individual mandate? The idea that “because we have a really good reason for doing it so it must be constitutional” is in fact the “slippery slope” personified. The government invariably is convinced it has a really good reason for doing something; it’s the courts’ job to determine if the text and framework of the Constitution allow it to do it.

Yuval Levin has a more compelling rebuttal: The argument isn’t true. He writes:


[C]ost shifting from the uninsured to the insured today is pretty negligible. Cost shifting from Medicaid—which pays doctors very poorly, forcing them to overcharge patients with private insurance—is greater, but it will grow, not shrink, under Obamacare, since the law would vastly expand the scope of Medicaid coverage without reforming the program. Cost shifting does not provide a legal justification for the individual mandate, but it does contribute to the policy argument for repealing Obamacare.

Levin references a Wall Street Journal op-ed by John Cogan, Glenn Hubbard and Daniel Kessler. In that piece the authors explain:


A study conducted by George Mason University Prof. Jack Hadley and John Holahan, Teresa Coughlin and Dawn Miller of the Urban Institute, and published in the journal Health Affairs in 2008, found that so-called cost shifting raises private health insurance premiums by a negligible amount. The study’s authors conclude: “Private insurance premiums are at most 1.7 percent higher because of the shifting of the costs of the uninsured to private insurance.” For the typical insurance plan, this amounts to approximately $80 per year.

The Health Affairs study is supported by another recent peer- reviewed study that focused exclusively on physicians. That 2007 study, authored by Massachusetts Institute of Technology economists Jonathan Gruber and David Rodriguez and published in the Journal of Health Economics, found no evidence that doctors charged insured patients higher fees to cover the cost of caring for the uninsured.
The authors argue that the government relied on sloppy, flawed studies to come up with the cost-shifting rationale. They explain:


Specifically, Congress ignored the $40 billion to $50 billion that is spent annually by charitable organizations and federal, state and local governments to reimburse doctors and hospitals for the cost of caring for the uninsured. These payments, which amount to approximately three-fourths of the cost of such care, mitigate the extent of cost shifting and reduce the magnitude of the hidden tax on private insurance.

Moreover, the economics of markets for health services suggests that any cost shifting that may occur is unlikely to affect interstate commerce. Because markets for doctor and hospital services are local--not national--the impact of cost shifting will be borne where it occurs, not across state lines.

If accurate, this is quite a problem from a policy perspective for the defenders of the individual mandate. If the free-rider problem (as Mitt Romney liked to refer to it) is virtually nonexistent there certainly must be cheaper ways to address the problem of the uninsured. And if in the Medicare system Obamacare duplicates the Medicaid problem (“Medicaid payments to doctors and hospitals are so low that the program creates a cost shift of its own”), Obamacare will dramatically increase cost-shifting. As the adage goes, you’ll see how expensive health care will be when it’s free.

The lesson here applies not only to Obamacare. Government schemes to monkey with the marketplace are rarely as precise as their creators would have us believe. Central control is and always has been a poor substitute for real marketplaces in which willing sellers and buyers set prices. When the government forces or cajoles buyers into the market (whether it be to purchase health care or “affordable” housing) it rarely turns out as planned.

By Jennifer Rubin | 12:00 PM ET, 06/10/2011